IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


/. 


^ 


s% 


v] 


^^ 


'/ 


/A 


1.0 


in    12.5 


2.2 


I.I 


Sk4    i 


U     I. 


1.25 


Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STRUT 

WIBSTIR,  N.Y.  145M 

(716)  •72-4S03 


u.. 


.^ 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


C 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  tc  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 


D 


D 
D 


D 


Q 


Coloured  covers/ 
Couverture  de  couleur 


I      I    Covers  damaged/ 


Couverture  endommag^e 

Covers  restored  and/or  laminated/ 
Couverture  restaur6e  et/ou  pellicul^e 


I      I    Cover  title  missing/ 


Le  titre  de  couverture  manque 


I      I    Coloured  maps/ 


Cartes  g^ographiques  en  couleur 


□    Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

I      I    Coloured  plates  and/or  illustrations/ 


Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
ReliA  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  ir^terior  margin/ 

La  re  liure  serrde  peut  causer  de  I'ombre  ou  do  la 
distortion  le  long  de  la  marge  IntArieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajout6es 
lors  d'une  restau[ation  apparaissent  dans  la  texte, 
mais,  lorsque  cela  Atait  possible,  ces  pages  n'ont 
pas  6tA  film^es. 


Additional  comments:/ 
Com/nentairas  suppiimentaires; 


Various  pagingi. 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lul  a  6t6  possible  de  se  procurer.  Les  details 
de  est  exemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mAthode  normale  de  filmage 
sont  indiquto  ci-dessous. 


D 
D 
D 
0 
D 
Q 
D 
D 
D 

n 


Coloured  pages/ 
Pages  de  couleur 

Pages  damaged/ 
Pages  endommag^es 

Pages?  restored  and/or  laminated/ 
Pagef.  restaurtes  et/ou  peiiicui^es 

Pages  discoloured,  stained  or  foxed/ 
Pages  ddcoior^es,  tachet^es  ou  piquies 

Pages  detached/ 
Pages  d^tachdes 

Showthrough/ 
Transparence 

Quality  of  print  varies/ 
Quality  inigale  de  I'impression 

Includes  supplementary  material/ 

Comprand  du  materiel  supplimentaire  , 

Only  edition  available/ 
Seule  Mition  disponibia 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc..  ont  4t6  film^es  A  nouveau  de  fapon  A 
obtenir  la  meilleure  image  possible. 


The 
to  t 


Thi 
poi 
oft 

fillT 


Orij 
be^i 
the 
sioi 
oth 
firs 
sioi 
ori 


Th« 
sha 
TIN 
whi 

Ma 
diff 
ent 
bet 
rigl 
req 
me 


This  item  Is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film*  au  taux  da  rMuction  indiquA  ci-dessous. 


10X 

14X 

lyx 

22X 

26X 

30X 

V 

12X 

16X 

20X 

24X 

28X 

32X 

1 

tails 

du 
Ddifier 

una 
fnage 


The  copy  filmed  h«r«  has  baan  raproducad  thanks 
to  tha  generosity  of: 

Supreme  Court  of  Canada 
Library 

The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


L'exemplaire  fiimA  fut  reproduit  grice  i  la 
ginArositi  de: 

CouT  wprAme  du  Canada 
Bibliothdque 

Les  images  suivantes  ont  iti  reproduitss  avec  le 
plus  grand  soin,  compta  tenu  de  la  condition  et 
de  la  nettetA  de  l'exemplaire  film  A,  at  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impree- 
sion.  or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmeJ  beginning  on  tha 
first  page  with  a  printed  or  illuatratee  i-npres- 
sion.  and  ending  on  the  last  page  wit    a  printed 
or  illustrated  impression. 


Lee  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprimAe  sent  filmte  en  commenpant 
par  le  premier  plat  et  en  terminant  soit  par  la 
derniAre  page  qui  comporte  une  ampreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmte  en  commenqant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  an  terminant  par 
la  dernlAre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ^(meening  'CON- 
TINUED"), or  the  symbol  ▼  (meening  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hend  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Un  dee  symboles  suivants  apparaitra  sur  ta 
derniire  image  de  cheque  microfiche,  selon  le 
cas:  le  symbole  -^  signifie  "A  SUIVRE  ",  la 
symbola  V  signifie  "FIN". 

Les  cartes,  planches,  tableaux,  etc.,  pauvent  dtra 
filmte  A  das  taux  de  reduction  diff^rents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clichA,  11  est  film6  d  partir 
de  Tangle  supirieur  gauche,  da  gauche  A  droita, 
at  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


irrata 
to 


pelure, 
in  A 


D 

32X 


i    "* 

2 

3 

1 

2 

3 

4 

5 

6 

I] 


"« IBIUIICTRWWH 


7 


TIIE   LAW 


/ 


-sc) 


y 


OF 


USAGES  AND  CUSTOMS, 


WITU 


/ 


ILLUSTRATIVE    CASES. 


BY 


JOIIN^  D.    LAAVSOX, 

AUTHOR  or  "  A  i'KliA  ri8K  UN  TIIK  C'uN  1  KACiS  OK  (JOMMO.N  C'AKKIKRS,"  KlC,  ETC. 


ST.  LOUIS: 
F.  H.  THOMAS  ,si  COMPANY. 

1881. 


Entered  according  to  the  Act  of  Cc    fi-ess,  in  fhp  year  is^l,  by 

JOHN  D.  LA-      OX, 

In  the  ofllce  of  the  Librarian  of  Congress,  at  Watiiington. 


Prtt$  of  a.  T.  Jones  <f  Co.,  St.  Louis,  ATo. 


il 


\ 


TO    TtIK 


HONORABLE  GEOKOE  W.  Mr CRARY,  LL.D. 


AUTHOR,  LKGISLATOH,  JURIST, 


NOW 


JUDr.K  OF  THK  UNI'I  KD  STATKS  CIRCUIT  COl'RT 


FOR  THE 


EASTERN  DISTRICT  OF  MISSOURI, 


THK    FOLLOWING    PAGES    ARK    HK S P E CTF U LL Y 


DEDICATED. 


PREFACE. 


I  '•annot  rofran.  from  ,.xpro.sinfr  sen.  ..on,i,I,.ra1>le  «ntisf.otion  thai 
I  .-nn  not  ,..llo<l  ,„,on  in  this  pin,.,  to  np.a,  the  ston-otN  ,....1  Mpolo^ry 
whHh.  of  lat,.  years,  aln.ost  without  exception,  has.  a<.eon.ponie.l  the 
appearance  ol  a  new  work  on  a  inneh-written  l.rand,  <,f  ,he  law.  I  am 
notohl.ircrl  toeall  ,he  att.-n.ion  of  the  profe..ion  to  the  faet  that  all  pre- 
y.>us  treat.ses  on  tins  snhjeet  have  lael...|  ...,tain  ,ualin,.atio..s  wLh 
h  Y'.-o   snppln.s.      U„h  th..  ex<.<.ption   of  a  short  tr«ct  puhli.ho.l  in 

^  tlh  ;\       .r".  '"'"'  '"'  *^"^""   '  ''""^"'  '"  "^  <''^-  "-'  -<t.mpt 
-  ^^nthe     to,^ether  the  nnn.on.ns  .-ases  in  whi,-h  evi.lenee  of  „sa..e  ami 

cnsto.n   has   he.-n  receive,!  in  eonrts   of  j„s,i,...   ...,„|  to  consi.lo"-  in  a 

soparate  treat.se  the  principles  upon  whi.-h  the  nsagesan.l  custom.s  of  i.K 

dm.lnals  an.l  trades  and  ocenpation.  are  a.ln.ittcd  into  the  law.  and  are 

allowed  t<.  sovorn  in  considc-rinu-  the  rights  and  liabilities  of  parties  to  ■■„ 

n  .h/ed  .is  laws  of  evidence  iM-come  less  strict,  beeat.se  whenever  a  c-onn- 
try  ,s  pro,£.ress,ve  all  its  laws  ten<l  to  improve.     In  the  earlier  history  of 
our  .unsprndenee  in  England,  the  courts  were  averse  to  ...in.  outride 
of  the  a.-tna    contract  for  the  pn-pose  of  inte,pr..tin.  it.      Hut  our  pro- 
j:n-.ve  a.e  has  j,iven  rise,  in  <.on.M.ercial  transactions,  to  n.anv  adnu- 
..».l-      -sto.ns  winch  have  p,H,.„|  thei.  way  into  th..  law,  and  th."-  courtJ 
-v.-  at    las,  recognized  the  ia.t  that  the  practices  of  the  public  are  not 
'...ly  easy  of   proof,   but  are   ,he  bes,   .viden..e  of   the  intention  of  a 
pa.ty.  M,  the  case  of  a  dispute,  there  bein.-  the  stronirest  possible  pre- 
sun.pnon  that  he  who  writes  a  document,  or  n.akes  an  a.nvcnent    /iocs 
-    others   do.   and    shapes  his  condu-t   a,.cordinj,  to  the  n.anners  and 
...-^aps  of  Im  time  an.l  place.     U.ur.  the  importance  of  this  species  of 
evidence    at    the   p,-ese„t  day,   the    tendency  of  fh..   .ourts    bein<r  now 
...wards  showing  the  utmost    liberality  in  adn.ittino.  evi.lence  of ^usa.^e 
a.ul  custom,  as  is  sufliciently  evident  in  the  frc,u..n,.y  with  which  ca^^s 
.n^ol^,nn:  the  a.scuss.on  of  the  a.lmis.ibility  of  parol  evidence  of  cus- 
tom and  usao^e  to  affect  the  rights  of  parties  as  n.easured  bv  the  cr,„eral 


l.ond 


The  Law  of  Usages  and  V 


on.    1875. 


iietomv.    A  J'nH'ti"fll  Law  Tract.     IJy  J.  IL  Halfour  Browi 


Jbid, 


(ill) 


ii;i;i  A(  K. 


1  iK's  of  :;>«■,  or  to  \;ii\.  :i(M  iiici(l«-iit-i  to.  or  I'xphiiii  tlic  jiicanino;  of 
^^■l•itt(Ml  (iiiitrMcts.  liMVf  iDiiu-  lH'fi»n'  tin-  Kii<rli,sli  ami  Aim-rican  courts 
\.itliiii  icctMit  yc:ir>. 

As  reunnis  thf  plnn  of  tin-  work.  I  have  exiu'riciiceit  :i  ilinkiilty 
■  iiicli  is  not  :il\v;iy>  (iicuiintt'rtMl  liy  lci;;il  writers,  in  tlic  fart  that  I  iiavc 
'iiH-n  ciilircly  without  n  'iiiidc  in  dividinji'  iny  suhjrct  into  ch:i|iti'rs,  ami 
p:  a(  (i(:iil\  without  our  in  its  l»'s>  tivnt'ral  divisions.  Ncvcrthclfss.  tlie 
(  :is(',-,  whnli  !  Iiavt'  (■on>ulU'd  sci'ni  to  resolve  tlicnisclvcs  into  live  lii'oad 
:Mid  di.-<tin(l  classes,  each  of  which  makes  a  separate  cha|iter  in  my 
liook.  Kii'st  ait'  thox'  cases  in  wiiicji.  for  one  reason  oi'  another,  usayo 
aid  custom.^  have  lu-cii  lU'clared  invalid  iiy  the  court.-.  ;  :iiid  iliesc  riMjuire 
;iii  indejiendciit  examination,  and  a  fliscu>>^ion  of  tiie  i  "(uisites  to  the 
\  ilidity  of  a  I'-^aii'c  or  iii-t'.m  (('ha|).  I.).  After  these  come  a  consid- 
e:a!)ie  iniinl>er  of  adindi'-ation>  wlicic  the  modes  of  t'stalili-hinii  tlieir 
existence  were  examined  and  laid  (hiwn  liy  tlii'  .iuduc.-.:  and  these 
<  ituiallv  >ii'^iicst  an  imiuiry  into  the  proof  iieees-arv  to  esudiiish  a 
usaie  oi-  cn-toni  (("iiaji.  II.).  •Kollowinu,-  these  is  the  nmjority  of 
t'.c  deci-.ion->  -  the  case-  in  which  the  usages  of  t lie  diffeient  relations 
a kI  oci  iipa'iuii-,  were  oITcmmI  in  evidence  to  affect  the  rights  and  lialiili- 
t  s  .if  person^  in  Mieir  (h'alinns  with  one  tiiiother  (f'hap.  III.).  A 
f  lurth  class  i'ml>races  tliox  cases  in  wliieli  oral  or  wi-itti-n  contracts 
;i'(,'  ti>  l>c  c\plaine<l  iiy  the  incidents  of  the  liiisini'ss  mit  of  which  tin; 
contract  came;  and  lie  extent  of  this  suhji-ct  demands  that  it  shnll  he 
p:csented  in  a  .^cpai-ate  diapter  (Chap.  I\'.).  Kinally,  and  hardly  less 
ii'iporlant,  ai'i'   the  east's   in  which   the  usa^'e.  when  offered  in  evidence, 


V.  .!s   found   to  contlict   with   .an  express  airreement    lietwi 


'en   the  [larties 


whose  .action-   it  was   inliodueed   to  affect,  or  with   a   le;iislative  act.  or 
with  a  lule  of  jiulilic  policy:   and  these  ai'e  emlu'aced   in  my  concludino' 


•lapter  (Chap.  \'.  ). 


far.  I   liclieve  my  arran;jfeilU'nt  to  lie  not  only 


jrtactic;il,  liiit  l(i;iical.  cwu  if  I  cannot  claim  the  latter  for  the  further 
('ivision.-.  of  my  work.  Here  it  will  he  found  that  I  lia\c  classed  the 
different  adjtidieations  on  the  hasis  of  the  different  trades  and  call- 
ioii's  in  which  the  usau'es  were  formed,  or  the  diffeient  instnnneiits  in 
t.ie  interpretation  t)f  wliieh  they  were  admitted.  .\s  I  have  pointeil 
o'lt  further  on.'  this  arranjijement  appears  to  nu-rit  the  criticism  wliich  it 
h.is  receiveil.  It  would  seem  that  the  mere  fact  thai  the  usaues  were 
ill  themselves  different  would  he  nearly  as  intelliuihh  a  ground  for 
cUissilieatioii  ;is  the  one  adopted.  Ne\i'rtlieless  this  is  the  arianii-ement 
of  the  diiivsters,  and  it  nuist  he  admitted  that  no  really  sciiuilific  classi- 
fication is  j)o.ssihlc.  1  would  ''^ain  ask  the  reader  to  hear  in  mind  that 
tlie  legal  principles  whicli  are  to  determine  the  admissilility  t)V  inadmis- 


.See  iwnt,  Cliaii.  I\  .,  §  IS-J 


riiKFACK. 


...I hty  c,f  Msnnros  an.l   custom,   hy  court,  of  law  are  the  sam.  in  all 
relatjons:   that  there  ,.an  be  „o  .lifferonce  l.e.ause  in  one  .-ase  the  usa^. 
IS  aduutte,!  to  affe<-t  the  rights  of  an  insurer  or  a  eonunon  earrier,  u^.i 
'■;  ^'"-ther  those  of  a  u.erehanfs  en,,.h>yee  or  a  foreign,   fartor :   tha, 
the  correct  result  cannot  he  reachea  hy  exa.ninino-  whether  the  parties 
were  n.am.facturers  or  tra.lesn.en  or  farn.ers,  where  the  ,uestion  is  sin.- 
|>ly  whethe,.  evidence  of  usaue  is  to  be  aHowed  to  explain  the  n.eanin. 
of  a  technical  or  eonunon  word  in  a  cntract  or  in  a  receipt.      If  thi"^ 
IS  not   lost  sm-ht  of,  n.y  classilication  will   be  found  tu  I,.-  ,|,e  i,,st    .. 
it  re.ulers  the  access  to  partic-ular  precedents  more  ..asy  and  readv'  li. 
tutuie  cases.  "  "^ 

Another  w,„.d  as  to  the  form  of  the  I k.      I  have  calle.l  the  work  :, 

rnK.vns,.:.   alth..n,,d.    I  have  prescnte.l  it  in   the   form  of   illu.tiative  o. 

eadin^  eases    with   notes.      Hut  in  doin.  ...is  I   have  not   misnamed  i, 

."   ...hT  to  obtain   for  mv  work   a  more  di^nilied  title.      7'A.  no!e.  a. 

-//y-^.v.      It  any  one  shoul.l  object  that  lu.  is  called  u^ ,o  pav  for 

one     '••-'-'    -d   tifty  p.,es  of   cases  taken   b. y  riol   „,e   ,',,i.,s, 

^  hcH,   I    shall    simply  ,eplv  that    he   obtains   them    without    anv  extn 
H..r,e.„oMer  to  admit  them  into  my, k.  the  m.tes  are  printed  in 

'b  1  nnted.  Ihus.  wlule  neither  its  sixe  nor  its  cost  to  the  pn,fe>.ioi, 
l.as  been  increase.l  at  all,  I  am  satistied  that  its  usefulness  t.  the  nmnv 
mo„.bers  of  the   bar  who   are   unable   to   obtain   a.-c-ess   to   a  n. 


a/the  a,],u,lications  on  the  subject.   I   have  aime.I  to  make  my  l,ook 
.d.e  die  place,  tor  the  ju.l,e  and  practitioner,  not  alone  of  a  t,  .ati^e 
but  o     the  ordinal   reports   of  the   several  thousaml  adjudic-ations  o 
the  law  of  usao-es  and  customs  which  it  contains. 


St.  Loris,  Mo.,  September,  1881. 


JOHN    D.  L.VWSOX. 


TABLE    OF   COXTE.XTS. 


CHAPTHK    f. 

ox   TIIK   KK(HJISITES   T(»   THKIR    VALIDITY. 

,Q^  II.LCSTRATiVK    I'ASRs. 

1.  Sewdl  V.  Corp.  _  A   usage  must  bo  ostab!i.h,.cl  ""^'^^ 

-.     Koo7v    ir,,.rf-Ausa,,.em».stl,occ.rtMiM„ndunifo'.-,,; '    *     ' 

4.  .V«rr«.vv.  /?««.,.,._  A  usHso.MH.t  1,0  k,>,>;;  "' 

'^■^^»f^->-y.sn,erland.-A.unn,n^nn.il>,    ,norni     .' •' 

/.  A/e^<-«//v.  H«W.- Same  principle.  " 

\1 

SECTION'  NOI'KS. 

1.  Df'fi'ntlons-Thecom  nnn-iaw.usio.Ms   . 

2.  The  customs  oC  nivrclianls     ....  ^^ 

3.  Lociil  customs  of  tiado ^^ 

4.  Oontnidictorv  decisions  — nidllonCti,'   •    i -^ 

5.Ditfcrontviewse„tc...t. ^^X^^'"^ '"'''"'''' ^^''''' ^' "" ''^^"^  '  ''' 

0.  The  dirterent  kinds  of  usages  and  custon^s -•' 

'.  A  cmmoM-law  custom  must  be  ancient  -'' 

8.  Bi^aparticularcustomorusageoftradei.;.alidn-.o"tabli:i,.;,.;     '     -     '     '  't 
0.  A  common-law  custom  must  be  certain  ta.  i,  i,.,l       .     .     .     .> 

10.  Likewise  a  usage  of  trade  must  be  ecrtainand'uninin,; 't 

11.  A  custom  must  be  compulsory     ....  ''- 

12.  A  custom  must  be  consistent  .     .     ,    * ■^'' 

13.  A  custom  must  be  continued  ''" 

14.  Acts  of  accomnmdation  or  induigen;.edo'n,,;  „;,.,;  Ju;.,; t 

lo.  But  cannot  be  changed  to  the  prejudice  of  others  in  some  c.;.: Z 

16.  A  common-law  custom  nu.sl  be. reneral  ^onu  c.,m  - ^g 

17.  How  far  generalitv  is  required  of  a  particular  custom 'f 

18.  A  usage  must  be  known     ...  ^^^ 

10.  Usages  not  known  to  parties  not 'bindino- ^^ 

-0.  Usages  of  the  Stock  Exchange     ...'"',         "*'"' 

21.  Customs  of  servants  of  corporations    .' ■*" 

22.  Customs  of  merchants  to  char-..  inl<-,st ^^ 

23.  Customs  of  banks •''2 

24.  Customs  of  particular  trades  ,uul'p,".,r,Li!,„; •^•' 

25.  Particular  customs  not  known  to  insured  inadmissible  ;     '.■;;;;;    .' 55 


Vlll 


TABLE    OI"    CONTKNTS. 


SEC 

'16. 
'27. 

;{0. 


;;♦. 


:;;•. 
\o. 
11. 

-!•_'. 

44. 
45. 

4t;. 

17. 

ts. 

40. 


rioN  i'A(;k 

And  80  of  particular  tustoms  not  known  to  insurer T)*; 

Knowlodgc  of  custom  —  Wlieii  not  prcsuinfd 50 

Person  ignorunt  of  a  usage  cannot  taUc;  iidvaMtiige  of  it 58 

Proof  of  linowledge  by  a  single  instance 58 

A  custom  must  b(;  m(jral 5H 

.Vcustinn  must  be  peaceable,  and  acquiesced  in Oii 

\  custom  must  be  reasonable <]:', 

Cusliims  bencliciiil  to  the  public  good,  though  injuriou-  to  some til 

Customs  not  unreasomible  if  simply  inconvenient ()5 

(/Ustoms  injurious  to  the  ')ulilii'  bad,  though  beneficial  to  some        117 

'J'lie  oxi.stence  of  unreasonable  modern  usages  dou^tc'l tl7 

UsMi^cs  y;rjwa/acir  roasonabb! — The  test  of  thi'i:- !-i:i<onableness <i8 

Unreasonable  usages  —  Bi^lween  veinlni- and  |)Ui\iiii-('r tJ'.t 

Same — iianks  and  baidviiig 70 

Siune  —  Carrictr  and  customer 71 

Sam(! —  Insuranci! ";> 

Same — Master  and  servant:  e>'iplo\-er  and  employee ?■'! 

Same  —  Public  oUii'crs 74 

Same  —  Principal  and  agent 75 

Same  —  Miscellaneous 77 

Tin;  custom  of  a  particular  person  or  the  habit  of  an  indi\itlual 78 

Cases  wiii'rf  this  prool'  was  im  j"rii'd HI 

Custom  does  not  mi\Ue  a  pir  ,n  'i  ,m-  mode  of  exocuting  a  contiact  ossi'utial    .     .  S'J 
Entries  made  in  tile  usual  <o, ;.■-!•  ofltusiucss a-j 


CHAPTER    II. 


ON   THE   PROOF    XKCESSAllY    TO    KS  rAI?LTS[I  TIIKM. 


II.l.fSTUATIVK    CASKS. 

s.   1',1,-roff  V.  Thnc.her. — A  sin'j,l(!  witness  insulHcient  if  contridii'tcd 
'.'.  Fleet  \.  MirloH.  —  Proof  of  usages  of  otlicr  iia  l- 


85 
',10 


NOTKS. 

>K.rrioN 

.")0.  (roneral  cu-itonis  are  judicially  noticed Oti 

51.  Ihit  particuliu- usages  and  custom-;  Mill-!  lie  p'.>\c  1 9(1 

5J.  Biu'den  of  )>roof — Custom  nmst  be  proved <(7 

5'!.  .\  sim;le  wilMes-;  nuiy  prove  a  i  ii>toni !t7 

51.  Hut  not  if  bi.s  testimony  be  Contradicted !)8 

55.  Motle  of  proving  usiges  a..d  customs  —  'rc-iimoiiy  o:   wiim  .--cs '.t'.t 

5(1.  S"me — .\djudged  cases 102 

57.  Who  may  be  called  as  witnesses 10:! 

5S.  Order  of  proof — Proper  (pieMioii- 10:! 

5'.t.  (^muitum  of  evidence 104 

i;o.  Law  and  Tact 104 

1)1.  Kvidence  of  cu>tom<  in  dilV'r -'t  111  ,.  i;  or  i.i  oilier  tr  1  !"- 105 

ii'2.  Customs  must  he  con-lruel  -'..•. eiiy 107 

t)3.  Conllict  of  laws 110 

(J4.  Pleading 112 


TABLK    OF    CONTEXTS. 


I.V 


CHAPTER    Iir. 

ox  niHLa  VALroiTv  ax„  ,,ppkct  ix  ..kkkhext  relatiovs  a... 

OCCUl'ATIONS.  ' 

NO.  ILI.U.STRATIVK    CASES. 

JO.   h'rnncry.    Hank  of   CoLnn'.ia.  ^~  M,,,,],,    ,,,„,    ,.  ,    ,  •  ,  rv<u: 

as,ii,M>ublepa,,..r_L-sa..-,.s...  to  2  ^^      '"'^'-    ^'"^    "'^.^"'tiable    an.l 

,  '--".^the,.K. .urt..:;:;;:;;^,:;^::?:;:;:'^'''-'''''^^''*'''-^---^'''''''"'!- 

«-...-  r.a,o.e.c.,.i , :  .,;-^:^;;:;;"7  ^'-'v-^'^^/o..  cb.«,a«,.- 

1^.  z..^.«.  V. /...,;,,,,;,,;,;:  ™^^^^^^  ^. ,.: 

charter  puw,.rs '         "'""•'"""-— i  ■■•'i^'''>    <'ontni,-y    to 

I  I.   //'f/V;er  V.  f ',7v    I>i,nran,:'e    Cow„an,i     '  vl   '  ■ ^^'^ 

pn.hibitccl  artiolc-s      .     .    y"  ■"""■"■  -'  '>•<■   'n^urancv  -  (J„,>t,„„Hr.v  ,hp  ,.f 

1"..    "'«^«/'v.  //ower.  — Marine  in.urui'co       1''. ^^'^ 

'"■  "«'■» ■«'-^"''-'.-..'x^,:  ,;:;"c;;::;':'r''"-  ■  ■'" 

crop i-'-uam       i^u.sioni  as  to  wavijoiriir 

K.  7^,Avq/Vv./^,./,,,,_:^,,.;,^;^,,-,  ;;    ;^  •     •     •     •     •    '•'    .    :  1.;;. 

vice ^^"S'   ''•■'  ivguluting  i,.nii  of  scr- 

1-.    lfW/*^v.^ra,/y._  Partnership  llWr-   of  n.n-i,    ■     '      ". ^'^ 

iisai^e '  ^^^'     "'  P'"t'icr  may  be  cnlar-vd  |,v 

in.   (Tuodmrnv  v.  Tiilfr  !>..;.>,.:.,  1        ^ 17>^ 

».  ^.»»v.«„,w,;/!iv.„  3;:, zr  [->■'- ^'■•""■-'-»'«-  p'--  •  '.- 
r  f"t'-  "'"-^" -^"-'-La^:^';::™;;:;;:" ""''^'"     •  >"" 

XOTK.s. 
.......OS         ^-    ^'"'^-^  "-'  ^^""^■'"^-  "-^  A'<^^o/^„6^.  „,,  ,,,,,;,,,,,;^  ,.^^^^.^. 

05.  Bank  otflcers  -  Powers  of:  as  at];.oted  bv  usn... 

(,•).  .Same  — Power  to  ccrtifv  checks  '         ""' -^•"• 

""•  "''"'^■'  —  Xci^rotiabo  paper— rjsa.'i' ,w  f,>   1  1       ,        -0  ■ 

f.  Same- Demand  ah^necc^.;^'"'"''*''''"'^' ''''^ '''•''- 20; 

^0.  Same  — Di^ioordunt  decisions     ...  -"7 

71.  UsMf,'e  and  days  of  grace    ...    * -Os 

72.  Duties  of  b  ink  as  coilectin'-  a-eiit -"'" 

7^.  I'aymenU.ybanknu.stb.TnJ.oamon^vlir.;.,; -"' 

rl.  Same- Payment  of  forged  check  "  '  -'" 

7').   Note  vohmtarily  cut  in  two  — rsa<rp  t„  r..'.,.  '    1'    i',!. -H 

7.i.  nank-ZW^rfHu-ldor       .     '""''^^  ^"  P''^' ""'3' half ,,., 

77.  Past-due  negotiable  pt.per-E.|uitie« -'•' 

1.'14 

//.   Voiimion  earners. 

78.  Liability  of  carriers  •  oated  by  custom 

<!..  Delivery  of  goods  toe.  Tier  as  controlled  by 'cus'tom." "'^ 

80.  Delivery  ot  bajigage  by  passenger.  SI", 

•     •     .  217 


TABLE    OF    (CONTENTS. 


T 


SECTION  I'AGK 

81.  Usiige  must  be  strictly  followed 218 

82.  Complete  delivery  not  altered  by  usage 218 

83.  Liability  for  property  while  in  transit 221 

84.  Stowage  of  goods  as  affected  by  custom 221 

85.  Delivery  by  carrier  as  controlled  by  custom 222 

86.  Delivery  by  carrier  —  Continued 224 

87.  Notice  required  by  law,  but  waived  by  usage 225 

88.  Cases  where  the  alleged  custom  did  not  control 227 

89.  Cannot  prevail  against  express  directions 228 

90.  Delivery  on  prohibited  days 229 

91.  Means  for  delivery 231 

92.  Usage  may  enlarge  carrier's  duty 231 

93.  Complete  delivery  not  affected  by  usage 231 

94.  Express  companies  and  delivery  by 231 

95.  Same  —  Cases  where  usage  did  not  control 232 

9G.  Same  —  Usage  permitted  to  relax  their  obligations 283 

97.  Connecting  carriers 236 

98.  The  carrier's  charges 236 

99.  Power  of  carrier  to  sell  goods  in  his  charge 238 

100.  The  carrier's  lieu  as  affected  by  usage 238 

101.  Hills  of  lading  and  restrictive  contracts 242 

102.  Statutory  exemptions  cannot  be  waived  by  usage 243 


///.   Corporatiotis. 

103.  The  ancient  doctrines  concerning  corporate  capacity  and  assent  as  affected 

by  usiigo 243 

104.  Officers  and  agents  of  corporations 244 

105.  Contracts  not  according  to  mode  prescribed — Usage 245 

IOC).  Lien  of  corporation  on  shares  of  stockholder 246 

107.  Transfer  of  stock  —  Notice 248 

IV.  Insxrance. 

108.  Usages  in  the  law  of  insurance 248 

109.  ISIr.  Ahnould'.s  four  rules 250 

110.  Every  general  usas;e /jrima /rtiue  part  of  the  policy  —  Marine  insurance    .     .  250 

111.  Commencement  and  end  of  risk 26'J 

112.  Deviation 253 

113.  General  average 255 

114.  Extent  of  the  policy 256 

115.  App&.tionmcnt  of  premium — Adjustment 256 

116.  Oilier  cases 257 

117.  Every  general  usage  ;)rimff,  /acie  part  of  the  policy  —  Fire  insurance  .     .     .  258 

118.  Customary  incidents  of  the  business  insured 258 

119.  Increase  of  risk 261 

120.  Changes  in  adjoining  premises 2t):; 

121.  Amount  of  loss 2ii4 

122.  Payment  of  losses  —  Mutual  companies 2'i4 

123.  Reinsurance 266 

124.  Life  insurance  —  Payment  of  premiums  —  Policy 265 

125.  Other  cases 2C7 


TABLK    Ol     (ONTKM'.s. 


XI 


.  221 

.  222 
.  224 

•  226 
.  227 
.  228 
.  229 
.  23] 
,  23] 
231 


jj,,.^,,,^  ''•    t'O'idloril  and  Tenant. 

12ti.  Customs  in  the  law  of  landlcrd  nn.l  loiiant ''!,*/.- 

127.  As  to  the  "  wavgoing "  irop      ...  ".", 

128.  Other  customs" '....,, .?■? 

129.  As  to  term  of  tenancy "_*■ 

139.  Explaining  terms  in  lea<e ['l 

131.  As  to  fixtures .'.'.'.*' f,'-^ 

132.  Not  admissible  to  contradict  lease !    !    !    ! ."-.> 

133.  When  lease  not  inconsistent  with  custom  ....'.*.*.'*.'''"  o'^ 

Vf.  Master  and  Servant  —  Employer  and  Employee. 

134.  As  to  terms  or  conditions  of  service ^_  . 

135.  As  to  the  proper  performance  of  a  service    .....'].'.**'*  o-- 

130.  As  to  wages  and  compensation .^i ' 

137.  Contract  not  wholly  performed  — Q«a/»<«m  me/'Mii;    *.    '.    '.    '.    '    '    \    \    '  T,^!^ 

VII.  Partnership. 

138.  Powers  of  partners  may  depend  on  custom 

139.  Usage  as  to  name  of  firm    .     .  

140.  Common  report  cannot  prove  a  partnership '         '  28' 

141.  But  usage  may  be  controlling  as  to'third  persons   '......'  2^' 

VIII.  Principal  and  Agent. 

142.  Agency  must  be  executed  in  accordance  with  usage 9^. 

143.  Authority  of  agent " 

144.  Usages  of  the  stock  exchange  ...  

145.  Delegation  of  agent's  authority *     '    '  o  ' 

146.  Power  to  sell  on  credit    ....  

147.  Power  to  pledge  goods .     .  -o. 

148.  Insurance  of  goods  in  hands  of  agent ~' 

149.  Payment  to  agent '[ ■"*' 

150.  Pavment  — Set-utt' ^^' 

'  •••••••.  29'* 

151.  The  agent's  compensation •    .     3- 

152.  The  agent's  compensation,  continued- The  rules  of  kwas'to,  cannot  be  ^^'^ 

overthrown  by  usage 

153.  Usage  cannot  excuse  a  disregard  of  instructions    ...'.'    .'    .*    .'     '    '    *  oq- 

154.  Liability  of  principal  and  agent  on  contracts     .  o/Jv 

166.  Attorney  and  client * "^ 

IX.  Vendor  and  Purchaser. 
15G.  Usages  of  trade  aflTecting  sales 

157.  Tarms  of  sale  — Price  — Credit '.*.*.*. - 

158.  The  rule  cayead  em^j^or- Warranties  on  sales  .    ....** o^. 

159.  Warranty  of  goodness— Continued .' ,^!.' 

ICO.  Warranty  — Sale  by  sample ".    !    !    ! 

101.  Warranty  — Sales  by  manufacturers l^ 

162.  Pledgeor  and  pledgee '^"^' 

103.  Sales  by  auction ^^^ 

••••*  Sin 

164.  Rescission  of  contract  by  buyer •    .    .    .  oiu 

165.  Delivery  of  goods  — Passing  of  title ?!' 


XII 


TAllLK    OF    CONTENTS. 


SKCTIOS  PAGE 

166.  Payment 316 

167.  Interest  —  When  allowed  by  custom 316 

X.  Miscellaneous. 

168.  The  question  of  negligence  as  affected  by  custom 318 

169.  Same — As  affecting  the  duties  of  common  carriers 310 

170.  Same  —  As  affecting  the  question  of  diligence  in  other  bailments     ....  323 

171.  Same — As  affecting  the  contributory  negligence  of  a  servant 324 

172.  Customs  to  excuse  negligence  rejected 328 

173.  Same — To  show  nuisance 330 

174.  Frauds 330 

175.  Trespass 331 

176.  Use  of  watercourses 332 

177.  Offices  and  officers 333 

178.  Crimes 333 


CHAPTER    IV. 

ON   THEIR  ADMISSIBILFTY   TO   K."«PLArN    WRITTEN    AND   OTHER 

EXPRESS   CONTRACTS. 


ILLUSTRATIVK    CASK.S. 
KO. 

24.  Smith  w  Wilson.  —  To  explain  words  and  phrases  therein 335 

25.  Cooper  \.  Kane.  —  To  add  terms  and  incidents  thereto 330 

26.  Hamfrey  \.  Dale.  —  Same  principle 342 

27.  Rycrss  v.  Wheeler.  —  To  interpret  wills 351 

28.  Tilley  v.  City  of  Chicago.  —  Not  admissible  where  no  contract  is  shown      .  350 

NOTK^S. 
SKCTION 

170.  Parol  evidence  not  receivable  to  vary  or  contradict  a  writing 364 

180.  Admissibility  of  evidence  of  usage  —  Views  of  Mr.  Brownk 36o 

181.  Usage  may  explain  technical  or  unintelligible  terms 367 

182.  Classification  of  the  cases 368 

183.  Usage  admissible  to  add  unexpressed  terms  to  written  contracts 360 

184.  Incidents  annexed  to  contracts  generally 370 

185.  Incidents  added  by  usage  cannot  establish  a  contract 370 

186.  That  parties  differed  as  to  the  usage  does  not  destroy  the  contract   .     .     .    .371 

187.  Usage  not  admissible  to  supply  disputed  term 37! 

188.  Contracts  of  sale  —  Usage  as  to  quality  and  description  of  goods    ....  372 

180.  Same  —  Usage  as  to  quartity  and  price 375 

UK).  Same — Other  cases 378 

191.  Principal  and  agent  —  Usage  and  custom 382 

192.  Other  cases  —  Suretyship  —  Attorney  and  client 38(i 

193.  Bailment  or  sale 387 

194.  When  admissible  to  explain  deeds 387 

195.  Sporting  usages 380 

196.  Mines  and  mining 3()0 

197.  Contracts  for  labor  and  materials 390 


TABLh:    or    COMKMft. 


\in 


SECTION 

198.  Master  and  servant— Contracts  of  .service ''V,",4 

199.  Same -To  explain  the  duties  of  an  en.plo.vn.ent  under"a  wri'tten  contract  '.  3'.: 

-UO.   Usage  admissible  in  explanation  of  wills .„^^ 

201    Evidence  of  usage  to  explain  word,  and  phrases'  in  polic'ies"of  insurance  ".    .'  40| 
^vz.  bar.ie — Manne  insurance 

203.  Same— Fire  policies ,, 

204.  To  explain  bills  of  lading ,/ 

205.  To  explain  charter-parties  and  other  niaritiriie  contracts    '...'.     [     "    .'  ji,., 


CHAPTER    V. 

ON     THEIR    INADMISSIB[LITY     WHEN    IN     CoVPrjOT    WITH     CON- 
TliAOTS,    STATUTES,    OR    LAWS. 

jjQ  ILLI.STKATIVE    CASES. 

29.  Blackeit  v.  Ro,,af    Exchange  Asmrance   Company.  -  Usages  contradicting 

termsof  written  contracts  inadmissible  .     .     .  "  j... 

30.  Broxon  v.  ^o.^.;-. -Usages  in  conflict  with  cypress  agreenu-nu  ii'.ad'missible'  417 
i\.  Noble  V.  DureU.  —  Customs  contrarv  to  statutes  bad  .     .  4.>,> 

32.  Barnard  v.  K.Uo^g.  -  i:sag,,s  in  conflict  wHh  rules  of  law  imi.ln.'i.Mhlo     '     *  4-'  | 

33.  Raisin  v.  Clark.  -  Usages  in  conflict  with  rules  of  public  policy  illegal  .     .  4.^1 

SECTION  ^'«'^««- 

206.  U-sagos  inadmissible  when  repugnant  to  express  contracts  .     .     .  .J04 

207.  Usages  repugnant  to  express  contracts  — Carrier  and  customer  !    ."     '     '     "  jr, 

208.  Same  — Insurances  policies .  •     •     ■     •>j 

209.  Same  — Landlord  and  tenant .' \m 

210.  Same  — Contracts  of  hiring 1 

211.  Same— Contracts  for  work  and  labor '. 4^, 

212.  Same  — Principal  and  agent ,, 

213.  Same— Bankers  and  brokers— Bills  and  notes .'    .'     '     "  41- 

214.  Same  —  Vendor  and  purchaser •     •     .     .       j 

215.  Same  — .Miscellaneous ,..', 

216.  The  eftl'ct  of  statutes  on  usages  and  customs •     •     .     .  •  _ 

217.  Words  dclined  by  act  of  I'arliament  — Contrary  usa-cs  "void  .'     .'     ."     .'  '.  "  ,(.-!| 

218.  Statutes  as  to  otticors' duties  — Inconsistent  usages  ".     ......  4:,:. 

219.  Statutes  prohibiting  usury  — Contrary  usages '..''''  \rl 

220.  Statutes  as  to  shipping-articles  and  carriers— Customs  .          ..."    .'  .'  4r,s 

221.  .Miscellaneous  statutes  and  repugnant  usages \     .  4to 

222.  Statutory  exemptions  cannot  be  waived  by  usage .  .  46" 

--•).  Statutes  maybe  construed  by  usage •  •  •      - 

224.  Municipal  charters  and  powers  as  aflfocted  by  usage    .......  4(;~ 

225.  Customs  and  usages  not  inadmissibi.  because  in'conllict  with  common-law 

rules   

226.  Contradictory  ex|)ressioiis  of  some  courts  on  this  subject    ...'.'    ,'     ."     ."  4,;.-, 

227.  Same  — Conflicting  decisions ,,,1 

228.  Banks  and  banking -Usages  against  legal  rules  admitted  !    .     \    .\    .     .  4ti7 

229.  Sumo  —  Usages  against  legal  rules  rejected .'.*.'.'.'  467 


I 


XIV 


TABLE   OF    CONTEXTS. 


■ 


SKCTION 

285    T      Hr/"!f"  '  '  ^""''^^  -'*h  '«g'^'  -le3  rejected       ' '«« 

230.  Landlord  and  tenant -Customs  against  law  adr^^^^^^^ ^^0 

-36.  Contracts  for  personal  services -Cii,tnm«/,        470 

.:i^-«-«-C.ston.s  against  Cejecl^^^^  471 

-i8.  Partnership -Usages  against  legal  rules  admitted *^' 

^B^'^^:":^:};zsi^-----  ■  ■  --til 

■MfiSu^^^*''^''^«'=''''«s  examined  .  474 

^48.  The  meaning  of  the  rule  thai     usage  m'ust  not  n„nfl- \  *•.:    / ^84 

usage  must  not  conflict  with  the  law    .    .    .  486 


TABLE   OF  ILLUSTRATIVE   CASES. 


Barxard  v.  KKLT.ooa    . 

Blackktt^.Koval  ExchIn-oe  AsW;a;c;:  Cm,-, 

Brown-  y.  FOSTKK         .  .  v.r,    v.-(.m|  a 

Ml-lkmcy  „.  Dekry-  FisiirN-o  CDMi-vvr  "     '     '         " 

tovN'ER  f.  Rom.vsox      ....  

Cooper  h.  K  we    .     .     .     * 

KsTKi'.r.Y  i:  Cor.E •     •     • 

Farmers  avo  Aria-iiANrus'  IJ  vvk  a 

tUKKT  r.  MUHTOS 
GOODKVOW  It.  Tvr.ER 

<JoKr)ov  r.  Little 

Harper..  City  Ivm/rance  Comp^v 

llor.riioET  ,:.  H.vruiKR 

HCMKHEY  r.  Du.E 

•Jones  /;.  Hon-DKy 

'^rETCALP  „.  Weld     .    .     .    ,         ' 

Nonr.E  /•.   DlIlKI.L 
PaRROTT  v.   'rilACIIEU 

I'axton'  v.  Cuurt.vay     .     .     .    . 
1'riestlky  v.  Pratt  .    .    ,    .         ' 

KAlSrX  V.  C/.ARK     ..... 

Rkv.ver  v.  Baxk  of  Coi.umuu 

PvVEKSS  V.    VVlIEKLEK         . 

Seagar  v.  Sliqerlavd 

Skwei.l  v.  Corp 

Smith  v.  Wii.so.v  .     ...'.' 

S-IKVEN'S  V.  liEEVES 

TiLLEY  V.  City  of  Ciucago    .' 
Wai.sh  v.  Homer 
Warivo«.  Grady 
Wioolesworth  v.  Dallisov 
WoMERsr.EY  V.  Dally 
Wood  v.  Wood    .    . 


\Y 


nAMPLAI.vTRAN-.sP„.iTVri.,.S   C 


)MPA\V 


PAGE 

.  424 

.  4i;j 
.  417 
.   1}.> 
.    I!t0 
.  :'.■■)[) 
.   I 'IS 
.  ];;;i 
.    00 
.    'SO 
.    12.-! 
.   118 
.    175 
.   ■■■■i-2 

.    ISfJ 

.      12 

,  ::o 

s5 

II 

201 

!  :i 
ik; 
:;-)! 

9 

2 

■•iS 
« 

I'iO 
178 

I ;;» 

5 
3 


^xv) 


TABLE   OF   CASES   CITED. 


Abbot  V.  H.>rrMor,,  7  Greenl.  118,  p  ')44 
AUMcl<>en  Co.  ,-.  Sutter,  2  Pat.  Sc.  A^np 

1106.     p. 'JSl*.  '^' 

Ackenburgli  „.  McCool,  36  Ind.  473      n 

204.  ■     ' 

Ackor  V.  Campbell,  23  "VVond.  372     n 
314.  ■     * 

Ackermnn  7.  Hhelp,  8  N.  J.  L  l-'S     n 
27.  "  ■    ^' 

Ackloy  ,..  Kplln-£r,  «  Cow.  223.     p.  135. 
Adams  o.  Jolinsuii,  15  111.  345.     p.  309. 
Adiims  V.  Mor-if,  51  Mi-.  479.     p.  332.  ' 
Adams  y.  Ottcrback.   15  Uow.  sW^'nn 
00,36,41.53.  '     ^^' 

Adams  n.  I'almer,  30  Pa.  St.  346.     p.  317 
Adams  v.  Petors,  2  Car.  &,  Kir    79;j        ' 

48.  ■     ^' 

Adams  v.  Pittsburg  Tns.  Co.,  70  Pa.  St 

411.     pp.  35,  99. 
Adams  v.  Wordley,  1  M.-o.  &  W  374      n 

364.  ■     ^' 

Adams  Express  Co.  v.  Milton,  11  Bush 

49.  p.  317. 
iEtim  Ills.  Co.  V.  Jackson,  16  B.  Mon  212 

p.  201. 

Agnew  n.  Johnston,  22  Pa.  St  471      n 

238.  ■     ^' 

Alabama,  etc.,  K.  Co.  v.  Kidd,  29  Ala. 

221 ;  35  Ala.  20!).     pp.  225,  409. 
Albatross  (The)  ,;.  Wayne,  16  Ohio,  513 

pp.  45,  101. 
Aldred's  Case,  9  Rep.  58  b.     p.  36, 
Alexander  v.  Alexander,  2  Ves.  640     d 

288.  ■     *^' 

Alpxmder  ».  Burchfield,   7  Man    &  G 
lOJl,     p.  200, 

Alexander  v.  Vanderzee,  L.  R  7  0  P 

530.    p.  378, 
Allpgre  V.  Maryland  Ins.  Co.,  2  Gill  &  J 

136;    6  Har.  &  J,  408;  20  Am.  Dec 

423;  14  Am.  Dee.  289.    p.  402. 

B 


Allen  V.  Dunn,  15  Me.  292.     p  983 
AHou  .,  Dykers,  3  Hill,  50,5.     p,,'.  :no, 

Allen  y.  Insurance  Co.,  2  Md    111      n 
202,  "•    lii.     p. 

Allen...  Lyles,  35  Mis,s,  613.     p   107 
Allen  „.  Merchants'  Bank,  ir,  Wend   IS-'. 
22   Wend.  45.     pp.41,  101,  102,  103.' 

Allen  V.  Ogden,  1  Wash.  C.  Ct.  174      „ 
280.  ^' 

Allen  0.  Rostain.  11  Serg.  &  R  .u'^     n 
Allen  0.  Sewall,  2  Wend.  327.     pp.  144, 

All.  n  V.  State  Bank,  1  Dev.  &  B.  En   3 
pp.  212,  213,  475,  4S5.  ' 

Allen  V.  Stevens,  29  N.  J.  L.  500      p  07 

Allen  V.  Sundius,  1  Hurl.  &  Colt.  I23' 
pp.  297,  383. 

Allen  V.  Vanderpool,  6  Johns.  69 ;  5  Am 
Dec.  160.     p.  2!K). 

AH  Saints'  Church  v.  Lovett,  1  Hall,  141. 

Allshouso  p.  Ramsay,  6  Whart.  331.    p. 

Alston  V.  Rowles,  13  Pla.  123.     p  330 
Alvord  ».  Baker.  9  Wend.  323.     p  316 
Amee  ».  Wilson,  22  Me.  110.     p  317 
American  Bible  Society  r.  Wetmore,  17 

Conn.  186,     p,  398. 
American  Central  Ins.  Co,   «.  McLan.,- 

than,  11  Kan.  533.     p.  284 
American  Express  Co.   „.  R„bi„son,  7-> 

Pa.  St.  274.     p.  232. 
American  Express  Co.  „.  Schier.  56  111 
140.    pp.  232,  233,  364. 

(xvii) 


il! 


XVIIl 


lAIUiK    Ol"    CAHKS    CITKD. 


'     I 


Alulorsoii  V.  Kiicoliiiid,  t>  Cow.  .'554.     p. 

28(). 
Amlcrsdri  i'.  Pitclior,  2   IJos.  «3k  I'lil.  108. 

pp.  1<»2.  ;$.'J7. 
Aiilrcws   V.  Iviicclatid,  C  Cow.  G5J.     p. 

:!n-t. 
Aiidrows  V.  MoUisli,  r>  'I'aiiti.  ftO'2.     p.  2")4. 
Aidn-ws  V.  Koiicli,  .'!  Alu.  MO.     p.  lO'.t. 
A  11(11 1' ws    V.  Tlioiiiiis,  1    Vmw.  225.     pp. 

;!■")■'),  ;!;•!». 
All-ell  1).  KciUi,  21  Vt.  :i7I.     p.  82. 
Aiinir-tciii  I',  lliiiulsoii,  1  tViniip.  M.  &  H. 

7S0.     p.  2G7. 
.AiiLclcsi'v  t'-  Iltilhorton,  10  Moe.  &  W. 

2!H.     p.    17. 
.Xiioiiymous,  12  Modern,  415.     p.  201. 
Aiioiivmoiis.  .1.  I).  M.io.  27.     !>.  17;!. 
Anslcc   r.  Nelms,  I    Hurl.  &  N.  225.     p. 

400. 
Austin  r.  (^iMwford,  7  Aiu.  .".:55.     p.  43. 
Ai)t()m;iri'lii  r.  llu.^sell,  t')3  Ala.  o5l).     })p. 

112.  47:. 
.Apiilcmiiii  r.  Fislior,  31  Md.  510.     p.  .'!77. 
Art'lu'v  r.   I$iilic'iiliiiin,    11    Modern,    Itii, 

p|).  ('i2.  10^. 
Ari'lier  r.  .Merchants',  etc.,  Ins.  Co.,  43 

Mu.  l:U.     pp.  250,  2(;0. 
Arents  n.  The  CoininoiiwciiiUli,  18  (initt. 

750.     p.  211. 
Armat  j'.  Union  Bunk,  2  Crnnch  C  Ct. 

180.     p.  212, 
Arinstroiig  v.  iUirrows,  fi  Watts,  26G.     p. 

Arnold   r.  M:»yor  of  Poole,  4   Man.  &  G. 

SO!,     pp.  17,  24;?,  214. 
Arnold  r.  Siillollc  Bank,  27  Barb.  424.     p. 

24H. 
Artiiiir  u.  The  Cassius,  2  Story,  81.    p. 

Ashe  V.  Dc  Uossct,  8  Jone.s  L.  240.     p. 

81. 
Ash  forth  v.  Redford,  L.  K.  0  C.  P.  20. 

p.  378. 
A-h  worth  V.  Outnim,  37  L.  T.  (n.  s.)  85. 

p.  3:!0. 
Astor  V.  Union  Ins.  Co.,  7  Cow.  203.     p, 

401. 
Atkins  I'.  Howe,  18  Pick.  10.     p.  310. 
Atkinson  r.  Allen,  29  Ind.  375.     p.  451. 
Attorney-General    v.  Benjamin,   2  Ves. 

643.     p.  288. 


Attonioy-Gcneral  v.  Druinnioiid,  1  Dr.  & 

War.  353;  2  II.  L.  Cas.  837.     pp.  ."08, 

30H. 
Attorney-General    v.   Dublin,  38    N.   H. 

512.     ().  400. 
Attorncy-(icnenil  v.  l'\).stcr,  10  Ves.  335. 

pp.  402,  403. 
Attorney-General  v.   Mathia-;,   27    L.    J, 

(Ch.)"701.     p.  331, 
Attorney-(}en('ral  n.  Newcotnbo,  14  Vos. 

1.     pp.  402,  40  !. 
Attorney-General  i\  Parker,  3  Atk.  576. 

pp.  402,  403. 
Attwood  V.  Small,  0  CI.  &  Pin.  2-32.    p. 

304. 
Atwatcr  r.  Clancy,  107  Mass.  ;5(iO.    p.  303. 
Atwell  /'.  Miller,'!!  M,l.  318.     p.  237. 
Aui;hinbaUL;h     r.   Coi)penli('irer,    .56    Pa. 

St.  347.     p.  207. 
Aiiriol  V.  Thomas,  2  Term  ilep.  52.    p. 

203. 
Austin  i;.  iiin<rham,  'M   Vt.  577.     p.  315. 
Avery  r.  Adams,  00  .Mo.  003.     p.  388. 
Avery  r.  Stewart,  2  Conn.  <>0.     p.  377. 
Ayers  r.  .VLj'calf,  3:1  111.  ;;07.     p.  52. 
Aymer  /».  Astor,  0  (^ow.  200.     p.  430. 
Ayianlt  v.  Piuilio   UanU,  47  IS.  Y.  570. 

p.  200. 
Ayres  n.  Weed,  10  Conn.  200.     p.  399. 

Babcock  o.  May,  4  Ohio,  334.     p.  254. 
Habeoek  r.  .Montijfoincry,  etc.,  Ins.  Co.,  6 

Barb.  (i;7;  4  N.  Y.  ;!20.     p.  400. 
Bacon  u.  City  of  Boston,  3  Cush.  174.     p. 

329. 
Bacon,  M.  S.  (The),  c.  Erie,  etc.,  Transp. 

Co.,  11  Pittsb.  L.  .1.  35.     p.  227. 
Backus  V.  The  .Marengo,  G  McLean,  487. 

p.  408. 
Biij^lehole  v.  Walters,  3  Camp.  154.     p. 

188. 
Bailey  v.  Appleyard,  3  Nev.   &  P.  257. 

p.  20. 
Bailey  i>.  Benslej-,  87  111.  550.    p.  47. 
Bailey  v.  Clark,  0  Pick.  372.     p.  283, 
Bailey  v.  New  Haven,  etc.,  11.  Co.,  107 

]\lass.  400.     p.  329. 
Bailey  v.  Shaw,  24  N.  H.  297.    p.  238. 
Bailitls  V.  Bricknell,  2  Taun.  120.     p.  463. 
Bailiffs,  etc.,  of  Ipswich  v.  Martin,  Cro. 

Jac.  411.    p.  243. 


TAHLK    OF    CASES    CITKl). 


XIX 


Bnin  V.  Urowii.  7  liuns.  50(5.     p.  'iai. 
Biiino8  V.  Kwiii<?,    I..  II.  1   Kxcli.  '.VIO.     p. 

2«(i. 
Bnird  «.  Fortuno,  7  .Iiir.  (n.  h.)  ()2(J.     p. 

I!0(J. 
Biiinl  V.  !Mutthfiw^,  (;  Dium,  1'2'.).     p.  ;!07. 
Bnknr  v.  Ciivc,  1  Iltiil.  &  N.  <)7H.     p.  USH. 
BHker  v.  Drtiko,  W,  N.  Y.  518.     pp.  310, 

484. 
BiikiM-  0.  Ludlow,  2  Jolins.  Cas.  2".0.     p. 

401. 
Biikor  V.  Piiyiic,  1  Vcs.  I')!),     p.  ir.i). 
Bnkor  M.Sqnior,  1   Hun,  418;  S  N.  Y.  S. 

c.  (J.  iV:  s.)  k;.-).    p.  ;)72. 
Buia  V.   lliiyiior,  1   .Mee.  &   VV.  ;54:5.    p. 

;580. 
Biildcy  V.  Parker,  2  l^iirn.  &  Cress.  'M.     p. 

312. 
Biildwiii  w.  American  Express  Co.,  2:'  111. 

l'.)7.     pp.  282,  2:{:i,  '2-',r>. 
Baldwin  w.  IJank  of  Ijoiiisjana,  1  La.  An. 

13.     p.  20i). 
Baldwin    r.  W'lnslow,  2   Minn.   213.     p. 

3t)4. 
Balloiir  V.  Wilkins,  9  Cent.  L.  J.  50.     p. 

408. 
Ball  u.  Gatos,  12  Alotc.  491.     p.  82. 
Baltimore,  etc.,  K.  Co.  o,  Faunce,  6  Gill, 

C.H.     p.  4(58. 
Baltimore,  ett\,  R.  Co.  v.  Glenn,  28  Md. 

287.    p.  110. 
Bancroft  u.  Peters,  4  ^Vlicli.  (519.     p.  230. 
Baiidel  0.  Isaac,  It  Md.  20J.     p.  4(52. 
Banister  v.  Hodgson,  2  Camp.    488.     p. 

227. 
Bank  of  Alexandria  o.  Denealc,  2  Cranch 

C.  Ct.  488.     p.  20(5. 
Baid<  of  Columbia  v.  Fitzhugh,  1  Hiir.  & 

G.  239.     pp.  53,  207. 
Bank  of  Columbia  «.  Mugrudor,  (J  Har. 

&  J.  172.     p.  207. 
Bnnkof  Colunibii)  y.  Patterson,  7  Crnnch, 

299.     p.  214. 
Bank  of  Commerce   v.   Bissell,  72  N.  Y. 

015.     pp.  229,  435,  437. 
Bank  of  Commerce  ».  Union  Bank,  3  N. 

Y.  230.     pp.  211,  468. 
Bank  of  the  Commonwealth  v.  Wister,  2 

Pet.  318.    p.  210. 
Bank  of  Kngland  v.  Anderson,  3  Bing. 
N.  C.  6(50.     p.  402. 


Bank  of  .Metropolis  v.  Bank,  1  How.  2iit. 

p.  20.'). 
Baid<  of  Mobile  o.  Iliiggins,  3  Alit.  200. 

p.  209. 
Baiikot"  United  States  i'.  Bank  of  Oeorgin. 

10  Win  at.  333.     p.  211. 
Bank  <if  United  Stale.s  v.  Dandridge,    12 

Wheat.  83.     p.  211. 
Bank  of  United  States  v.  Hiivi.s,  2  nil!, 

451.     p.  209. 
Bank  of  United  States  i\  Goddard,  5  Ma- 
son, 3fi().     p.  20'.). 
Batd<  of  United  Slates  y.  Norwood,  1  Har. 

it  .1.1215.     p.  241. 
Hank  of  United  States  o.  Sill,  5  Conn. 

10  5;  13  .Am.  !)(!<•.  41.     p.  213. 
Ilanli  of  Iliica  i>.  Smith,   18  .loims.  230. 

p.  122. 
Hank  of  Uticu  v.  Wager,  2  Cow.  712.     p. 

4.")8. 
i'luik  of  Virginia  d.  Ward,  0   Muni".  1(50. 

p.  212. 
IJiuik    i.f  Washington  v.  Triplett,  1    Pet. 

2').     pp.  53,  58,  207. 
Bankus  o.  The  State,.  I  Ind.  111.     pp.  (52, 

4(50. 
Baptist  Churtdi  o.  Mullbrd,  3  Halst.  182. 

p.  211. 
Barber  w.  Bruce,  3  Conn.  9.     pp.  8,  143, 

222,  324. 
Barber  v.    Dennis,    6    Modern,    (59.     p. 

291. 
Barber  o.  Gingell,  3  Esp.  (50.     p.  2U. 
Barclay  r.  Goueh,  2  I^p.  .571.     p.  181. 
Barclay  o.  Kennedy,  3  Wasii.  C.  Ct.  350. 

pp.  •■)2,  98,  317. 
Bar.;!Uo  «.  Sliortridge,  5  H.  L.  Cas.  297. 

p.  2 10. 
Bargett  r.  Orient  ^fiilual  Ins.  (Jo.,  3  Bosw. 

38.-).     pp.  4(0,  4';'). 
Baring  u.  Corrio,  2  Barn.  &  Aid.  138.     p. 

292. 
Baring  y.  Stanton,  L.  R.  3  Cli.  Div.  502. 

p.  29'). 
Barker  u.  I}.)rz.)ne,  48  Md.  474.     p.  409. 
Barker  y.  (ireenwuod,  2  You.  &  Coll.  418. 

p.  292. 
Bariier  y.  Valentine,   10  Gray,  341.     p. 

214. 
Barksdale  v.  Brown,  1  Nott  &  M.  517;  9 
I       Am.  Dec,  720.    pp.  67,  192,  299. 


1 
i 


T 


XX 


TAnLK   OF    CA8K8    CITKD. 


Biirlow  V.  Lambert,  28  Ala.  704.    pp.  23. 

Bayliffo    v.   Buttorworth,    1    Exch.  425. 

3(58,  441. 

pp.  47,  48,  281,  287. 

HaniHrd  v.  Adams,  10  How.  270.    p.  2!t ;. 

Bii.vi.cs  V.  Fry,  15  Vcs.  120.     p.  293. 

IJiiniard  v.  Kelloj,'g,  10  Wall.  883.     pp. 

Ba/.in  v.  Steamship  Co.,  3  Wall.  jr.  229. 

30'i,4'2f,  4(;fi,  481.  4St. 

pp  229.  437. 

Uiiniard  v.  Yatos,  1  Nott  &  M.  142.    p. 

Bi'ach  r.  Karl  of  Jersey,  3  Barn.  &  Cress. 

30f). 

870;   1  Han...  &  Aid.  550.     p.  354. 

B:irno8  V.  Ingalla,  39  Ala.  193.     pp.  107, 

Beaili  1!.  Forsyth,  14  Barb.  499.     p.  292. 

<  1 . 

Beacon  Life,  etc.,  Assur.   Co.  v.  Gibb,  1 

Riirncs  v.  Ontario  Bank,  19  N.  Y.  152. 

Moo.  P.O.  C.  (n.  8.)  73.     p.  200. 

p.  215. 

Beale  v.  Creswcll,  3  Md.  19().     p.  293. 

Barnet  v.  Steinbach,  1  W.  N.  C.  335.     p. 

Bealo  V.  Pettit,  1  Wash.  C.  Ct.  241.     p. 

83. 

82. 

liiinictt  V.  Lambert,  15  Mee.  &  W.  489. 

Beals  V.  Terry,  2  Sandf.  127.     pp.  09,  449. 

!».  2S9. 

Bean  v.  Bolton,  3  Phila.  87.     p.  73. 

Barnett  v.  Smith,  17  HI.  5(15.     p.  283. 

Bearse  v.  Hopes,  1  Sprague,  331.     p.  222. 

BarriPtt  v.  Stanton,  2  Ala.  181.    p.  Jill. 

Beat>on  v.  llaworth,  6  Term  Bep.  631. 

Baron  v.  Placido,  7  La.  An.  229.     p.  393. 

p.  254. 

Barrett  v.  Deere,   Moo.  &   M.   200.     p. 

Beattv  V.  Gregory,  17  Iowa,  109.     pp.  45, 

292. 

46. 

Barrett  v.  Swan,  17  Me.  180.     p.  283. 

Beatty  v.  Marine  Ins.  Co.,  2  Johns.  109; 

Barrett  v.  Williamson,  4   McLean,   580. 

3  Am.  Dec.  401.     p.  146. 

pp.  45.  324. 

Bean  v.  Bloom,  3  Wils.  458.     p.  05. 

Biirrincjton  v.  Justice,  2  Claris  (Pa.),  501. 

Beaufort  v.  Swansea,  3   Exch.   413.     p. 

p.  2V>7. 

360. 

Bartholomew  v.  Leech,  7  Watts,  472.    p. 

Beaumont  v.  Fell,  2  P.   Wms.  138.     p. 

2;ii. 

398. 

Biiitlctt  r.   Pcntland.  10  Barn.  &  Cress. 

Beavan   v.  Delah.ay,  1  H.  Black.  5.     pp. 

7fiO.    pp.  48,  251.  252,  292. 

208,  209. 

Barton  v.  Moses,  .32  111.  50.     p.  294. 

Becklbrd  v.  Crutwell,  5  Car.  &  P.  242. 

i5arton  v.  McKclway,  22  N.   J.  L.  165. 

p.  136. 

pp.  53.  372. 

Beckwith  v.  Farnam,    5  B.   L  230.     p. 

Bass  V.  Clive,  4  Moo.  &  S.  13.     p.  211. 

307. 

IJassett  P.  Sali.'bui y  Man.  Co.,  43  N.  11. 

Bedford  v.  Flowers,  7  Humph.  242.    p. 

5()7.    p.  333. 

441. 

Bastard  v.  Ba>tMrd,  Show.  81.     p.  230. 

Beebe  v.  Robert,  12  V/end.  413.     p.  303. 

Bastard  v.  Smith,  2  Moo.  &  II.  129.     p. 

Beeston  v.  Beeston,  1  Exch.  Div.  13.     p. 

331. 

288. 

Bates  c.  Bank  of  Alabama,  2  Ala.  452. 

Beirne  v.  Dodd,  3  Sandf.  89;  5  N.  Y.  73. 

p.  214. 

pp.  308,  309. 

Bateson  v.  Green,  5  Term  Rop.  412.     p. 

Beirne  v.  Dodd,  1  Seld.  95.     p.  429. 

194. 

Belcher  v.  Parsons,  Amb.  219.     pp.  284, 

Batson  v.  Donovan,  4  Barn.  &  Aid.  30. 

285. 

p.  319. 

Bell   )'.  Hagerstown  Bank,  7  Gill,  227. 

Baxter  i-.  Leland,  1   Blatchf.  526.    pp. 

pp.81,  200. 

222,  436. 

Boll  V.  Reed,  4  Binn.  127;  5  Am.  Dec 

Baxter  v.  iMassasoit  Ins.  Co.,  13  Allen, 

308.     pp.  120,  131. 

320.    p.  20-). 

Holl  1'.  Smith,  99  Mass.  617.     p.  435. 

Baxter  i-.   Nurse,  1    Car.  &  Kir.   10;    0 

Bell  V.  Warden,  Willcs,  202.     p.  31. 

Man.  &  G.  035.     pp.  277,  278. 

Bellamy  v.  Sabine,  2  Pbill.  L.  425.     p. 

Baxter  v.  Kodmau,  3  Pick.  435.    p.  282. 

311. 

1 


i'AULi!:   Ui'    CAMOs.    <  ITKI*. 


XXI 


Uelleiniru   v.  liiink  of  Uailcd  titutes,   4 

Wimrl.  10'».     p.  'M'X 
liciid  r.  Gcor^iu  Im.  Co.,  Ang.  on  Ins., 

g  2'».    p.  4:iy. 
liiincdict  V.   David,   2  McLean,  348.     p. 

284. 
BciiriiT  V.  Clemens,  58  Pii.  St.  24.     p.  1 10. 
Beiiiiur  V.  Eqiiititbic   Ins.  Co.,  6  Allen, 

222.     p.  2H7. 
Bennt'tt  u.  Drew,  3  Hoaw.  S").*).     p.  30"). 
Bennett,  Kx  part.).  10  Ves.  ;iHl.     p.  2;)j. 
Bennett  o.  Holmes,  32   Ind.  108.     p.  .J8J. 
Bennett  v.  beligman,  32  iMich.  500.     p. 

270. 
Bcnnin!,'ton  «.  Tuylor,  2  Lutw.  K.  C.  1517. 

pp.  1)7,  171. 
Benny  v.  JVijram,  18  Mo  101.     p.  202, 
Benny  v.  I'Ju.des.  18  Mo.  147.     p.  2!)0. 
Benoil  u  Conwiiy,  10  Allen,  52:5.     p.  4()0. 
Benson  v.  Ciuipmiin,  8  C.  B.  OtiT.     p.  20. 
BeiiNon  V.  Nettlct'old,  3  Mac.  &  G.  94.     p. 

3'i5. 
Ben  ktniins  v.  Berckin.ms,  IG  N.  J.  Eq. 

122;  17  N.J.  Eq,  453.     p.  01. 
Berj^  r.  Cliiciigo,  etc.,  U.  Co.   (Sup.  Ct 

Wis.),    p.  321. 
Be^k^illi^o  Woollen  Mills  Co.  v.  Proctor, 

7  Cu.li.  420.     pp.  31,  40,  4ti,  324. 
Benilieimer  y.  Mar.siiall,  2  Minn.  78,     p. 

211, 
Bcrtollati  v.  A  Carjjo  of  Brimstone,  11 

C*'nt.  L.  J.  351.     p.  227. 
Bertlioud  c.  (Jordon,  6  La.  570.     p.  291, 
Berry  v.  Cooper,  28  Ga.  513.     p.  212. 
Besant  «.  Cross,  10  (;.  B.  895.     p.  3ii4. 
Bctliuin  c.  Turner,  1  Me.  11.     p.  332. 
Bitkford  v.  Parson,  5  G.  B.  920.     p.  2f)7. 
Biikiiallu.  Waterman, 5  R.  I.  43.     p.  307. 
Bidille  o.  Ueed,  33  Ind.  52!).     p.  270. 
Bigj^er  u.  Parkinaon,   7  Uurl.  &  N.  955. 

p.  30'.). 
Biggs  u.  Brown,  2  Serg.  &  R.  14.     p.  2G!). 
Billings  V.  Tolland,  etc.,  Ins.  Co.,  20  Conn. 

139.    p.  2G2. 
Birch  V.  DePeyster,  1  Stark.  N.  P.  210. 

p.  409. 
Bircliard  v.  Knapp,  31  Vt.  679.    p.  52. 
Birkett  v.  Willan,  2  Barn.  &  Aid.  35G. 

pp.  130,  225. 
Bishop  V.  Clay  Ins.  Co.,  45  Conn.  430.    p. 

100. 


ISishop  u.  C     rgeson,  GO  111.  4H4.     p.  283. 
Bishop  of  Winchester  t>.  Knight,   1   P. 

Wms.  40G.     p.  G5. 
Bispham  v.  Pollock,  1  McLean,  411.     p. 

•■;i7. 

Bisscl  V.  Camphell,  54  N.  Y.  363.     p.  408. 
Bi.sell  V.  Kodeti,  34  .Mo.  G3.     p.  2HH. 
BisMll  V.  llyan,  23  111.  5GG.     pp.  40,  !H, 

100. 
Black  I).  California  Ins.  Co.,  42  N.  Y.  393. 

p.  251. 
Blackett  y.  Uoyal  E.Kchange  Asaur.  Co.,  2 

Cromj).  &  ,J.  214;   2  Tyrw.  2GG.     pp. 

34K,  413,  428,    135,  439,  457. 
Bl!ic(|uiero  v.  Hawkins,  1  Doug.  378.     p. 

17. 
Bl.ikio  V.  Steinbridge,  5  Jur,  (n.  s.)  1128. 

p.  222. 
Blancliard  v.  Hilliard,  11  Maas.  85.     pp. 

205,  206. 
Blsihchard  v.  Isaacs,   8   Barb.  388.     pp. 

21 G,  217. 
Bliinchard  »,  Page,  8  Gray,  287.     p.  40H. 
Bland  v.  Lipscoinbc,  4  El,  &  Bl.  712;  I 

Jur.  (n.  s.)  707;  3  Com.  Law  Itep.  2'll. 

p.  133. 
Blankney  i'.  Winstanley,  3   Term  Uep. 

279.     p.  403. 
Bleckley   v.  Munson,  13  Conn.  299.     p. 

3114. 
BlewGtt  V.  Tregonning,  3  Ad.  &  E.  654. 

p.  31. 
Blin  V.  Mayo,  10  Vt.  5G.     pp.  135,  141, 

14.3,  22G. 
Bias  V.  Arnold,  8  Vt.  252.     p.  300. 
Bliss  V.  Inhabitants  of  Wilbraham,  8  Al- 
len, 5(i4.     p.  328. 
Bliven  v.  New  England  Screw  Co.,  23 

How.  420.    pp.  45,  304,  3G2,  435. 
Blizzard  v.  Walker,  32  Ind.  437.    p.  460, 
Blodgett  V.  Weed,  119  Mass.  215.     p,  280. 
Blossom  V.  Champion,  37  Barb.  554.     p. 

229. 
Blount  u.  Starkey,  1  Tayl.  110;  2  Hayw. 

(N.  C.)  75.    p.  315. 
Blundell  v.  Catterall,5  Barn.  &  Aid.  283. 

p.  193. 
Blythc  V.  Richards,  10  Serg.  &  R.  2G1 ; 

13  Am.  Dec.  G72.     p.  333. 
Board  c.  C'ronk,  1  Halst.  119.     p.  4G2. 
Boardman  v.  Gaillard,  1  Hun,  217.    p.  45. 


T 


xxu 


TABLE    OF   CASES    CITED. 


!:  I 


Boardman  v.  Gore,  15  Mass.  331.     p.  282. 
Boardmrtii  v.  Spooner,  13  Allen,  353.     pp. 

GO,  307,  450. 
Bocklen  v.  Hardcnbcrgh,   60  N.    Y.  8. 

p.  283. 
Bocock  V.  Pavcy,  8  Ohio  St.  270.     p.  288. 
Hoililiii^ton    V.   Schloiicker,   4   Burn.   & 

A.lol.  7.V2.     p.  20'.). 
Bddonham  v.  Bennett,  4  Prico,  31.     pp. 

l:!().  22.). 
Bodlish  IK  Pox,  23  Me.  90.     pp.  15,  104, 

303,  38(i,  13'). 
B)diiic  V.  Insurance  Co.,  51  N.  Y.  117. 

p.  280. 
Bodley  v.  Crai<^,  1  B.  Mon.  77.     p.  74. 
Boi^crt  V.  Cauiii;in,  Anth.  97.     p.  458. 
Boriistoii  r.  (ireon,  K)  East,  71.     p.  267. 
Bolton  V.  Caider,  1  Watts,  360.     pp.  22, 

321. 
Bond  V.  Clark,  35  Vt.  577.     p.  364. 
Bond  «.  Pittard,  3  Mee.   &  W.  357.     p. 

281. 
Bond  V.  Tlio  Cora,  2  Wash.  C.  C   84.     p. 

164. 
Bonflli'.s  Telc,!,'raph  Co.,  In  ic,  L.  U.  12 

Eq.  2 16,     p.  21.). 
Bonlicia  i\  Sniiili,  12  Mce.  &  W.  405.     p. 

281. 
Boon  i;.  The  Belfast,  40  Ala.  184.     \..  436. 
Boornian  v.  Jenkins,   12    Wend.  566.     p. 

308. 
Boorinan    r.  .lohnston,  12    Wend.    566. 

pp.  303,  382. 
Booth  V.  Pi.Ti'o,  33  N.  Y.  463.     p.  305. 
Bonekins  i\  Bcvan,  3  Ilawle,  37.     p.  308. 


Bownn  v.  Burk.  13   Pa.  St.  14G.     p.  314. 
Bowon  V.  .Jackson,  Wliart.  Dig.  252.     p. 

130. 
Bowcn  V.  Newell,  13  N.  Y.  200.    p.  209. 
Bowen  w.  Newell.  5  Sandf.   32(5.     p.  206. 
Bowcn  V.  Kuiherford,  60  111.  41.     pp.  282, 

281. 
Bowcn  y.  Stoddard,  10  Mete.   381.     pp. 

15,  75. 
Bower  1).  Smith,  8  Ga.  74.     p.  82. 
Bowie  y.  Maddox,  2.)  V^>^.  285.     p.  2^1. 
Bowie  V.  Napier,   1  MeCttrd,   1.     p.  290. 
Bowkcr  i\  lloyt,  18  Pick.  55.5.     p.  312. 
Bciwiiiaii    I'.  American    Expresi:  Co.,  21 

\Vi-.  IV      p.  408. 
Bowman  v.  Horsey,  2  Man.  &  11.  85.     p. 

381. 
Bowman    v.  Teall,  23  Wend.  306.     pp. 

13'),  137. 
Bowcn  0.  llodj^son,  4  Taun.  189.     p.  136. 
Bowrini^  v.  Shepherd,  L.  U.  6  t^.  B.  309. 

p.  288. 
Boyco  V.  The  Em[)rcss,  3  West.  L.  J.  174. 

p.  324. 
Boyd  V.  (Jraham,  5  Mo.  Ai)p.  403.     p.  .»5. 
Boyd  v.  Shorrock,  L.  11.  5  Eij.  72.     p.  272. 
Boyd  V.  Wilson,  83  Pa.  St.  319.     p.  309. 
Boyson  v.  Coles,  6  .Man.  «&  Scl.  14.     p. 

290. 
Braliaiit  v.  Wilson,  35  L.  J.  (Q.  B.)  49. 

p.  17. 
Br.icllicc    I'.  (Hirist'a  llospitid,  5  Scott  N. 

\l  70.     p.  17. 
l',r:ullnirii  v.  Fohy,  17  Alb.  L.  J.  483.     p. 

78. 


Bon-.p  r.  Ninir.jrer,  5  Minn.  523.     p.  20.S.    \    l'.rjidlord  y.  Drew,  5  Mete.  188.     p.  324. 
Bosley  r.  Shanner,  26  Ark.  280.     p.  365.    |    Bradford  y.  -Manly,  7  Am.  Dec.  125;  13 


Bostick  y.  Hardy,  30  Ga.  836,     p.  292. 
Bostock  V.  Jardino,  3  Hurl.  &  Colt.  700. 

p.  299. 
Bo..^ton  Bank  r.  Hodges,  9  Pick.  420.     p. 

291). 
Bosworlh  y.  Bugdcn,  7  Modern,  459.     p. 

463. 
Bosworth  r.  Ilorne,  2  Stra.  1085.     p.  463. 
Bottoniley  n  Forbes,  5  Bing.  N,  C.  121. 

pp.  409^  411. 
Bongliton  0.  Staiidish,  48  Vt.  594.     p.  311, 
Bourko  V.  Kneeland,  4  Mich.  336.     p.  104. 
Bow  y.  Allenstown,  34  N.  II.  351.     p.  463. 
Bowdie  V.  Fennell,  1  WiU.  233.    p.  463. 


.Mass.  138.     p.  308. 
Bradley  v.  Bosley,  1    Barb,   Ch.   125.     p. 

311. 
Bradley  w.  Eeo,  38  Cal.  362.     p.  390. 
Bradley  v.  The  People,  56  Barb.  72,     p. 

330. 
15radlcy  o.  Salmon  Falls  Man.  Co.,  30  N. 

11.487      p.  54. 
Bradley  v.  Wheeler,  4  Hoot,  18;  44  N.  Y. 

500.     pp.  45,  435. 
Bradstreet  y.  Bank  of  Koyalton,  43  Vt. 

128.     p.  245. 
Bradslreet  v.  Uoron,  Abb.  Adm.  209.     p 

227. 


TABLE    OF    CASES    CITED. 


XXI 1 1 


pp. 


Bratly  v.  Oastler,  3  Hurl.  &  Colt.  112.     p, 

Brady  v.  Todd,  9  C.  B.  (.v.  g.)  592     n 
284.  ^' 

Brady  t,-.  Wilcoxsoi,,  41  Cal.  239.     p  317 
Bra,!,-   ».   Morrill,    4'J   Vt.   40.     pp.  jjog 

Brailslbrd  (..  WilJin.ns   15  Md.   150.     p. 

Branch  r.  Biirnloy.  I  Call,  147.     ,,   or,o 
Branch   Hank    0.  Knb.v,   1   Ala.    Hs"  "n 
20!).  P* 

Brandao  y.  Barnett,  12  CI.  &  Fin   805 
p.  20. 

UrMiitluy  ..  Thomas,  22  Texas,  270.    p. 

Brau-l..y  V.  United  States,  96  U.  S   168 

p.  451. 
Brchon  0. 0'Donuell,  34  X.  J.  L  40S     n 

Bnmner  «.  Hull,  L,  It.  1  C.  P.  743.  ]o 
Jur.  (\.  s.)  1M8.     p_  y;5_ 

Brent  y.  Han,  o   the  Metropolis,  1  Pet  89 
pp.  205,  207.  ■      ■ 

Brent..  Hank  ol"  Washln-ton,  lOPet  59lJ 
p.  24ii.  '    ■ 

Brent  r.  Cook.  12  B.  iMon.  26S.     p  37 
I5'-c4t,.l   r.  Williams,  4  E.xch.   023.     nn 
280,  281.  PP- 

Bi-evver  n.  Tyrinirlmm,  12  Pick.  547.     p 
817.  '■ 

B'i>li;<'port  Bank  r.  Dyer,  19  Conn.  136 
p.  '20\). 

Brii^'s.-  >■■  r.awHMu  ,  :!  Term  Ken.  451 

p.  365. 
Bri.srht^  0.  r.e-erton,  2  DeG.  P.  &  .J„  nOG. 

Brind  ..  Dale,  8  Car.  &  P.  207.    pp.  215, 

Bri'i-h  Assur.  Co.  l^  Brown,  12  C  B  7"^ 
p.  215. 

«r<)adwell   v.   Broad^voll.  6  111.  599.     „. 

Bromlwell  ..  Butler,  6  McLean,  296.     p. 

Bn.M.loy  ..  Kliiott,  38  N.  If.  287.  p  .364 
«r..ok.s  «.  Barrett.  7  Pick.  96.  p  8S  ' 
Br.n,^h  ,;.Whitn.ore.4Termlicp.'206. 

Bnn,s^,uv.  The  Hudson,  il  La.  An.  427. 


Brower  0.  Lewis,  19  Barb.  574.     pp.  3O8, 

Brown  u.  Arnott,  6  Watts  &  S.  402.     p. 
286. 

Brown  i'.  Brooks,  25  Pa.  St.  210.  p  377 
Hrowa  V.  Brown.  8  Mete.  573.     p.  388 

Brown  o.  (Jarstairs,  3  Camp.  ICO.  p  •>.-,3 

Brown   r.  Cornwcll,   1   U,,ot,  .iO.  p   '">i' 

Brown  ,..  Cnmdall,  11  Conn.  92.  p.  28-'' 

Brown  „.  Kd-ington,  2  Man.  A  d' 27n 
p.  309. 

Bniwn  o.  Farrar,  3  Ohi,.,  15-5.     p.  4.-,3 
Brown  ,'.  Fo.tcr,  113  .M^...  136.     p.  4*17 
I5ro wn  r.  llarraden,  I  Term  Hep.  Us      n' 
liOS.  '  P' 

f'.rown  r.  Harris,  2  Gray,  359.     p.  237 
Brown  «.  Ilarri-on,  17  Ala.  774.     p.  294. 
Brown  V.  Ililcheock,  28  Vt.  452.     p   3"'3 
Brown  0.  Jackson,  2  Wash.  C.  Ct.  21.'  "p' 
466.  * ' 

Brown  ,;.  Lit(<m,  1  P.Wm..  140      p  0,35 
Brown  i-.Lusk,  4  Yer-  210.     p   208  " 
Brown   »;.  Murphee,  31  Mi.s.  9I."p";;09 

Brown  ..  McDonnell,  9  Upper  Canada  ()■ 
B.  312.     p.  30.->.  ' 

Brown   v.  Tapscott,  6   Mce.   &   \V    I19 
p.  283. 

Browne  v.  Byrne,  3  El.  A  151.  70-!  •   Is  .Fur 

TOO.     pp.  349,  3.-,0,  3„s.  .3(1:),  370    ,|0 
Brownin-y.  Lony  Island  P.  Co.,  2  Dalv 
117.     p.  72.  -' 

Bruin  V.  Knotr,  12  Sim.  45.3.     p.  17 
Brumby  y.  Smith,  3  Ala.  12  ;.     p.  27^ 
Bryan  (,.  Spur-in,  5  Snccd.  6,S|.    "p.  'I'-r,^ 
Bryant   v.    Conunonwcalth     In.     Co      I; 

l'i<k.  131,  14(t.     pp.  ]3,j,  2.i^ 
I'ryant,;.  Kelton,  1  Texas,  431.     p    loo 
Bryant  v.  .Moore,  26  .Me.  S4      p   '>Hi\ 
Bryants.  Pou^rhk,.,p,i„  M„t„^,;  ~^^_Y.^^ 

17  N.  Y.  200.    pp.  ir,o,  o,;o. 
Bryce  r.  The  Empress,  3  West.  L.  .M7I 

p.  101.  " 

'^;'^I,''"  ''•  '^"^■''"■'  -  "'"••  *  ''■  -"i-    1- 

Buclienau    u.    IIorn(>y,    12   111.    33^.     p 

Piickman  ,..  Levi, ;;  Cami..  414.     nn  "I'", 
2Pi. 'JI7.  Il'--i>, 

Buck  r.  Burk,  18  N.  V.  .■i37      p.  .•|7,s. 
Buck  r.  Chesapeake  Ins.  Co.,  1   IVt'lJl 
p.  251. 


i 


T 


XXIV 


TABLE    or   CAPES    CITED. 


Buck  v.  Grimshaw,  1  Edw.  Cb.  140.     pp. 

45,  :514. 
Huckbee  v.  United  States  Ins.  Co.,  18 

Hfirb.  5H.     p.  2«6. 
J{iic'l<l:irid  i'.  Coiiwiiy,  16  Mass.  306.    p. 

'2«'.t. 
Hiicklo  r.  Knoop,  L.  R  2  Excb.  125.     pp. 

4"),  411. 
IJucknam  v.  Chaplin,   1   Allen,   70.     p. 

28(i. 
Hiickner  t".  Real  Estate  Bank,  5  Ark.  ■'iSG. 

p.  :!(>n. 
Huford  IK  Tucker,  44  Ala.  8ft.    p.  SO. 
lUilbroko  V.  Goodovo,  1  W.  Black.  5(it1. 

p.  17.  • 

Bulklcy  V).  Derby  Fishing  Co.,  2  Conn. 

252  ;  7  Am.  Dec.  271.     pp.  'M,  H'>,  245. 
Bull  V.  Sclmborth,  2  Md.  iiS.    p.  2S;!. 
Bullanl  V  National  Bank,  18  Wall.  580. 

p.  247. 
Bullet  i'.  Bank  of  Pennsylvania,  2  Wash. 

C.  Ct.  172.     p.  212. 
Buncdmbe  Turnj)iko  Cn.  v.   McCarnon, 

1  Dcv.  &  }}.  aiO,     p.  214. 
Burke  r.  Wolfe,  38  N.  Y.  S.  C.  (J.  &  S.) 

2t;;;.    p.  83. 
Burleson  v.  Goodman,  32  Texas,  229.     p. 

82. 
Burial  Board  v.  Thompson,  L.  II.  C  C.  P. 

457.     p.  288. 
Burr  u.  Byers,  10  Ark.  398.     p.  82. 
Burr  I'.  Sickles,  17  Ark.  428.     p.  41. 
Burr  c.  Williams,  23  Ark.  244.     p.  31G. 
Burrell  r.  North,  2  Car.  &  liir.  081.     pp. 

215,  2 If,,  217. 
Burrill  r.  L'liillips,  1  Gall.  'MO.     p.  200. 
Burrough  y.  Moss,  10  Barn.  &,  Cress.  558. 

p.  214. 
Burrouj^bs  v.  Langloy,   10  Md.  248.     p. 

104.  ' 
Burniwes  v.  Caines,  2  Upper  Canada  Q.  B. 

288.     ji.  2'i9. 
Burliicrs  i\  Reran,  24  Gratt.  42.    p.  SG5. 
Burton  r.  i?liti,  23  Vt.  151.     p.  297. 
Burton  r.  Stewart,  3  Wend.  23ti.     p.  312. 
Busby  u.  North  American   Ins.  Co.,  ''0 

Md.  572.     p.  2(ii;. 
Bu>cli  V.  Pollack,  41  Mich.  04.     p.  375. 
Butler  V.  Basing,  2  Car.  ^\  V.  013.     p.  215. 
Butler  V.  City  ol*  Charlcstown,  7  Gray.  I'J. 

pp.  41,  404. 


Butler  V.  Cornwall  Iron  Co.,  22  Conn. 

360.    p.  83. 
Butterwortb  v.  Volkening,  4  N.  Y.  S.  C. 

(T.  &C.)050.     pp.  45,  4(). 
Button   V.   American  Tract  Society,  23 

Vt.  349.     p.  398. 
Bywater  i-.   Richardson,  1  Ad.  &  E.  508. 

pp.  311,  34S,  362. 

Cabot  V.  Wiiisor,  1  Allen,  540.     p.  451. 
Cadwallader  r.  Kroesen,  22  Md.  200.    p. 

281. 
Cadwallader  t-.  West,  48  Mo,  483.     p.  305. 
Cadwell  v.  Meek,  17  111.  220.     p.  33. 
CallVey  v.  Darby,  0  Ves.  490.     p.  284. 
Caldecott  (•.  Smytbios,  7  Car.  &  P.  808. 

pp.  97,  208. 
Caldor  V.  Dobell,  L.  11.  6  C.  P.  480.    p.  92. 
Caldwell  u.  Caldwell,  1  .1.  J.  Marsh.  53. 

p.  311. 
Caldwell  V.  Dawson,  4  Mete.  (Ky.)  121. 

p.  45. 
Cali^bcr  v.  Forbes,  41  L.  J.  (Ch.)  50.    p. 

91 ;. 
Cambridge  v.  Lexington,  17  I'ick.  230. 

J).  ;;88.' 

Camden  v.  Cowley,  1  W.  Black.  417.     pp. 

100,  257. 
Camden  v.  Doremus,  3  I  low.  515.     p.  107. 
Camden,  etc.,  Traii^p.  Co.  c.    Belknap,  2 

Wend.  355.     pp.  130,  215.  220. 
Cameron    i\    Blackman,  39    Mich.  108. 

pp.  90,  277. 
Cameron   v.  Alerchaiits',   etc.,  Bank,  87 

Mich.  210.     p.  402. 
Campbell  v.  Campbell,  21  Mich.  438.     p. 

330. 
Campbell  v.  Dent,  54  Mo.  325.     p.  280. 
Campbell  «.  Fleming,  1  Ad.  &  E.  40.    p. 

311. 
Campbell  v.  Hastings,  29  Ark.  512.    p. 

282. 
Campbell  v.  Insurance  Co.,  2  Whart.  64. 

p.  294. 
Canbain  v.  Fish,  1  Price  P.  C.  148.     p. 

331. 
Canby  v.  Frick,  8  Md.  163,     p.  108. 
Canio  v.  llorsfall,  2  Car.  &  Kir.  349,     p. 

301, 
Capel  V.  Thornton,  8  Car.  &  P.  352.    p. 

292. 


TABLE    OF   CASES    CITED. 


XXV 


pp. 


P- 
P- 

64. 

P- 

P- 
P- 


Carey  v.  Bright,  58  T'a.  Rt.  70.     p.  388. 
Ciirkin   v.  Kiivory,  14  Gray,  528.     p.  4')2. 
Carlelon  v.   Hriylitwcll,  2  P.  Wm-;.  402. 

p.  it;'.. 

Cnrlisle  v.  WuIIhco,  12  Ind.  252.     pp.  80, 

387. 
Carlton  v.  Ludlow  WooUcmi  Mills,  27  Vt. 

11) ;.     p.  2-<2. 
Cailton  V.  Sumner,  4  Pick.  540.     p.  311. 
Oarlyon  v.  Iluyward,  24  Sol.  .1.  ^07.     p. 

270. 
Curnochan  v,  Gould,  1   Bailey,  179.     p. 

liW. 
Carpenter  v.  Providence  Ins.  Co.,  10  Pot. 

511.     p.  103. 
Carr  i-.  Callaglian,  3  Litt.  372.     pp.  74, 

75. 
Carr  />.  .Jackson,  7  Kxeli.  382.     p.  315. 
Carson   r.    Mla/.cr,   2   l>inn.  475;    4  Am. 

Dec.  403.     pp.  112,  124,   127,  12',),  473. 
Carson  n.  fiCMUiers,  11  Cent.   L.  J.  157. 

p.  322. 
Cars(Mi  i;.  Marine  Ins.  Co.,  2  Wash.  C.  Ct. 

408.     p.  257. 
Carter  v.  Boelim,  3  liurr.  1005.     p.  55. 
Carter  /;.  Crick.  4  Hurl.  &  N.  412.     p.  303. 
Carter  i>.  l).-uu;lass,  2  Ala.  500.     p.  282. 
Carter  r.  Pliiladelpliia  Coal  Co.,  77  Pa. 

St.  2.si;.     p.  53. 
Carter  c.  Siiiulerson,  5   I?inf^.  70.     p.  403. 
Carvick  c  Vickcry,  2  I)ou-,^  053.     p.  09. 
Casco  Man.  Co.  v.  Dixon,  3  Cash.   407. 

p.  300. 
Case  V.  Poller,  8  Johns.  211.     p.  84. 
Case  of  Corporations,  4  Coke,  77.     p.  103. 
Cash  V.  llinkle,  30  Iowa,  023.      p.  418. 
Cass  i\  Boston,  etc..  11.  Co.,  14  Allen,  448. 

p.  319. 
("assell  V.  Backrack,  42  Miss.  50.     p.  315. 
Cassidy  r.  Stewart,  2  Man.  &  G.  437.     pp. 

20,  27. 
Castle  1).  Playford,  L.  R.  7  Exch.  98.     p. 

315. 
Casth'inan  v.  Southern  Mutual  Ins.  Co., 

14  Mush.  197.     pp.  77,  415. 
Caswell  V.  Boston,  etc.,  K.  Co.,  98  Mass. 

194.     p.  322. 
Cateshy's  Case,  6  Coko.  02.     p.  1 10. 
Catley  v.  Winlringhani,  Peako  N.  P.  150. 

pp.  140,  113. 
Call  in  V.  Bell,  4  Camp.  183.     p.  288. 


Crttlin  r.  Smith.  24  Vt.  85.     pp.    ;;;,  300. 
CatteralU.  Ilindle,  L.  U.   1  C.  P.  189;  2 

C.  1'.  30S.     pp.  292,  293. 
(Dayton  i>.  Hardy,  27  Mo.  53i;.     p.  282. 
Cayzer  v.  Taylor.  10  Giay.  410.     p.  401. 
Central  Bank  v.  Davis,  19  Pick.  373.     p. 

208. 
Central  Bridcjo  Co.  r.  City  of  Lowell,  15 

Gray,  100.'    p.  291. 
Ccntrid   11.  Co.  V.  Anderson,  58  Ga.  393. 

p.  72. 
Chamberlain  v.  McClurg,  8  Watts    &  S. 

31.     p.  :V\'t. 
Chatnbcrhiiri   of  London   i>.  Compton,  7 

Dow.  &  JJ.\.001.     p.  403. 
Chamhers  v.  George,  1  Litt.  335.     p.  380. 
Cluunhers  v.  Miller,  13  C.  B.  (\.  s.)    125. 

p.  315. 
Cliaml)err,l>urj^  Ins.  Co.  v.  Smith,  11  Pa. 

St.  120.     pp.  214,  240. 
Chamhovet  r.  Cagncy,  35  N.  V.  S.  C.  (J. 

&  S.)  180.     p.  330. 
CliMinpion  v.  Gordon,  70  Pa.  St.  470.     p. 

20:). 
Chandler  v.  Belden,  18  .lohns.  157.     pp. 

211.  135. 
Chandler  v.  Hogle,  58  III.  40.     p.  290. 
Channel  v.  Fasset.  It;  Ohio,  100.     j).  2H3. 
Chanter  i>.  Hopkins,  4  Mee.  &   W.   399. 

p.  309. 
Chapnum  v.  Devercux,  .".2  Vt.OlO.     p.  23. 
Chapman  v.    Latlirop,  G    Cow.    110.    p. 

314. 
Chappel  V.  Avery,  0  Comi.  34.     p.  102. 
Charlton  v.  Gibson.    1  Car.  &  Kir.  511. 

p.  1 13. 
C1kis(!  v.  Alliance,  etc..  In.-    Co.,  9  Allen, 

311.     p.  237. 
Clia.se  I..  Barrett,  4   Paige,   148.     p.  283. 
Chase  v.  Washburn,  1  Ohio  St.  252.     p. 

387. 
Chastain  v.  Bowman,  1  Hill,  270.     pp.40, 

193. 
Chaurand  v.  Angerstein,  Peako  N.  P.  61. 

p.  403. 
Cheneryr.  Goodrich,  10 '»  Mass.  500.     p. 

100. 
(Ihenowilh  v.  Dickinson,  8  B.  Mon.  156. 

p.  323. 
Chesapeake  Bank  v.  Brown,  29  Md.  483. 
p.  41. 


I. 


w 


XXVl 


TABLE   OF    CASES    CITED. 


Cliosapoako  Bank  v.  Swain,  2!)  Md.  483. 

City  of  AVashington  (The),  92  U.  S.  81. 

p.  211. 

p.  324. 

Chosliiro  (Thp),  2  Sprngue,  28.     p.  222. 

Citizens'  Rank   v.  Grafllin,  31  Md.  507. 

Cliestorfieltl  Mim.  Co.  v.  Dehoii,  5  Pick.  7 ; 

pp.  .",«,  40. 

10  Am.  Dec.  307.     p.  203. 

Citizens'    Bank  r.  Nantucket  Steamboat 

Cliicaj^o,  etc.,  Iiis.  Co.  v.  Carpenter,  28 

Co.,  2  Story.  V).     p.  214. 

I11.3(i0.     p.  211. 

Citizens'  Ins.  Co.  v.  McLaiigldin,  53  Pa. 

Cliicago  Packing  Co.  v.  Tilton,  87  111.  548. 

St.  485.     pp.  OS,  200,  4S-). 

pp.  on,  104. 

Clamorgan  u.  Guisso,  1  Mo.  99.     p.  449. 

Chicago,  etc.,  K.  Co.  v.  The  People,  56  111. 

Clancarty  v.  Latouche,  1  Ball  &  B.  420. 

305.     p.  400. 

p.  318. 

Chicitgo,  etc.,  R.  Co.  v.  Scott,  42  111.  132. 

Clare  v.  Maynard,  7  Car.  &  P.  241.     p. 

p.  225. 

300. 

Chicoster  V.  Walker,  3  Rich.  L.  284.    p. 

Clark  0.  Anderson,  10  Bush,  91.     p.  204. 

270. 

Clark  V.  Baker,  5  :Metc.  452.     pp.  312,  313. 

Chicliej;ter  v.  Oxenden,  3  Taun.  147.    pp. 

Clark  V.  Baker,  11  .M<>tc.  188.     pp.  24,  41. 

:',;i.-),  .",37. 

Clark  V.  Barnwell,  12  How.  272.     p.  222. 

Chi.kiM'ing  v.  Fowler,  4  Pick.  371.    pp. 

Clark  V.  Cox,  32  ,Mich.  204.     p.  104. 

l:'.:"),  2J5. 

Chuk  i\  Lo  Cren,  9  Barn.  &  Cress.  52. 

Cliicnpee  Hank  v.  Eager,  9  Mete.  584.     p. 

p.  403. 

200. 

Clark  V.  Denton,  1  Barn,  &  Adol.  92.     p. 

Child  r.  Hudson  Bay  Co.,  2  P.  Wms.  207. 

463. 

p.  2 10. 

Clark  0.  Faxton,  21  Wend.  152.    pp.  136, 

Child  V.  Morlcy,  8  Term  Rep.  CIO.    p. 

137. 

287. 

Clark  V.  Giflord,  7  La.  524.     pp.  30,  71. 

Cliild  ('.  Sun  Afutual  Ins.  Co.,  3  Sandf.  26. 

Clark  y.  Harvey,  54  Pa.  St.  1 12.     p.  209. 

pp.  33,  42.  403. 

Clark    V.    ManufacturcM-s'     Ins.    Co.,    2 

Chippendale,  Ex  parte,  4  De  G.  M.  &  G. 

Woodb.  &  JI.  472.     p.  202. 

lit.     p.  2H1. 

Clark  r.  Roystone,  13  Mee.   &  W.  752. 

Chouteau  «.  The  Anthony,  10  Mo.  210; 

pp.  272,  302. 

20  Mo.  510.     p.  100. 

Clark  r.  SmallHeld,  4  L.  T.   (.v.  s.)  405. 

Christian  i-.  Dripps,  28  Pa.  St.  271.     p. 

p.  ;;si. 

272. 

Clark  V.  Tucker,  3  Lev.  282.     p.  403. 

Christian    v.   St.  Paul,   etc.,  R.  Co.,   20 

Clark  i>.  United,  etc.,  Ins.  Co.,  7  Mass. 

Minn.  21.     p.  72. 

305.     p.  167. 

Ciiri<ty  u.  Cummins,  3  McLean,  38(i.     p. 

Clai'k  V.  Van  Northwick,  1  Pick.  343.     p. 

311." 

200. 

Chuhl)   r.  Ronaud,   16  L.  R.  {s.  s.)  492. 

Chirko  1).  Dederick,  31    i\Id.  1 18.     p.  214. 

p.  221. 

Clarke  V.  I)i.:kson,  El.  HI.  ob  Kl.  148.     p. 

Cliuilon  i'.  Frcwen,  L.  R.  2  Eq.  034.     p. 

311. 

;;:;]. 

Clarl<(>  National  Bank  o.  Bank  of  Albion, 

Ciiuiniiiiti,  etc.,  R.  Co.   i>.  Boul,   15  Ind. 

52  Barb.  502.     p.  205. 

345.     pp.  31,  37,  215. 

rhnkson   v.    Woodhouse,   5  Term  Hop. 

( 'ity  r.ank  u.  Cutler,  3  Pick.  414.     pp.  205, 

412;  3  Dou^.  180.     p.  17. 

207. 

ClasMii   r.  Sinunonds,  6  Term  Rep.  533. 

( 'ity  ol'Cliampaign  v.  Patterson,  50  111.  01. 

p.  251. 

p".  320. 

Clay  V.  Turner,  3  Bibb,  62.     p  311. 

("ity  if  D.ivonporc,  y.  Peoria  Ins.  Co.,  17 

Clayton  ».  Corby,  5  Q.  B.  415.     pp.  32, 

Iowa,  27ii.     p.  24'). 

63. 

City  of  London  v.  Vanucro,  12  Modern, 

Clayton  o.  Grcgson,5  Ad.  &  E.  302.     pp. 

209.     p.  04. 

Ill,  390. 

TABLE    OF    CASES    CITED. 


XXV  M 


214. 


Clayton  c.  Lord  Nugent,  13  Mee.  &  W 

200.     pp.  102,  ;i9H. 
Clem  V.  Martin,  34  Ind.  341.    p.  267. 
Clonieiis  V.  Fatton,  9  Port.  280.     p.  82. 
Clement  (The).  2  Curt.  3113.     p.  324. 
Clifton  V.  Walinesley,  5  Term  Rep.  5G4 

p.  304. 
Clinan  o.  Cooke,  1  Sch.  &  Lof.  22.    p.  273 
Cliquot's  Champagne,  3  Wall.  114.    p 

305. 
Closi'  V.  Fields,  9  Texas,  422.     pp.  315, 

:;ii). 
Clyde  r.  Graver,  54  Pa.  St.  251.     p.  242 
Coates  y.  Lewes,  1  Camp.  444.     j>.  2'.)2. 
Cobb  V.  Davenport,   3   V'rooni,  3(i'.i.     p 

331. 
Cobb  V.  Lime  Roek,  etc.,  Ins.  Co.,  58  Mo 

32t!.     pp.  -'xj.  401. 
Cobban  V.  Downe,  5  E^p.  41.     p.  210. 
Cocliran  c.  Kulberg,  3  F^n.  121.     pp.  308 

40S. 
Cdikbiirn  V.  Alexander,  G  C.  B.  791.    p 

37'.i. 
Cocke  r.  ibtiley,  42  Miss.  81.     p.  304. 
Cockell   r.  Gray,  3   Hrod.  &   B.  1S7.     p, 

111. 
€iK'i:i'r  «.  Guy,  2   Bos.  it  Pul.  5(>').     p 

3(il. 
Cockran  r.  Irlani,  2  .Mau.  A;  Sol.  301.     pj) 

2>^^,  2'.iO. 
Cockrill   r.  Kirkpatrick.  U  Mo.  ()97.     p 

38';, 
Cneksedi^e  '•.  Fan^baw,  1  Doug.  119.     pp 

04.  (id. 
Codd  . .  IJi'owii,  1.')  L.  T.  (N.  s.)  530.     p 

78. 
C'ddman   r.  Armstrong,   2H  Me.  91.     pp 

101.  30:;. 
Codnian  r.  Evans,  5  Allen,  378.     p.  331 
Collin  0.  Newburyport  Ins.  Co.,  9  .Mass 

430.     p.  257. 
Coll'man  r.  Campbell,  87  111.  98.     p.  40. 
Coggs  0.  Bernard,  2  Ld.  Rayni.  918.    p 

13(1. 
Cohea  r.  Hunt,  2  Smed.  &  M.  227.     pp 

98,  200. 
Cohen  (!.  Frost,  2  Duer,  335.     p.  221. 
Cohen  r.  Paget,  4  Camp.  90.     p.  293. 
Coil  (..  Willis,  18  Ohio,  28.     p.  31.5. 
Coit  r.  Conmieieial  Ins.  Co.,  7  Johns.  385. 

|.p.  143,  401. 


Colchester   v,   Goodwin,    Cart.   117.     p. 

403. 
Colcock    V.  Louisville,   etc.,   R.  Co.,   1 

Strobh,  329.     p.  109. 
Cole  V.  Goodwin,  19  Wend.  251.    pp.  135, 

130,  137,  HO,  221. 
Cole  y.  Kerr,  20  Vt.  21.     p.  310. 
Colo  V.  Wade,  10  Ves.  27.     p.  288, 
Cole  V.  Wendell,  8  .Johns.  11(>.     p.  378. 
Coleman  v.  Chadwick,  80  Pa.  St.  81.     p, 

77, 
Coleman   v.  McMurdo,   5   Rand,  51,     p, 

453. 
Colepepper  v.  Good,  5  Car.  &  P.  380.     pp. 

143,  215. 
'    Coles  r.  Bristowe,  L.  R.  4  (^h.  3.     p,  288. 
Coles  l:  Treeolliick,  9  Ves.  250.     p.  289. 
Colket  u.  Ellis,  10  Phila.  375.     p.  2S0. 
CoUender  c.  Dinsmore,  55  N,  Y.  200.     p. 

435. 
CoUings  V.  Hope,  3    Wash.  C.  Ct.  149. 

pp.  33,  30,  291. 
Co;iin.s  V.  Blantern,  2  Wils.  341.     p.  305. 
Collins  V.  Drise(,ll,  34  Conn.  43.    p.  388. 
Collins   y.  New    England    Iron   Co.,   115 

Mass.  23.     p.  54. 
CiiUyer  r.  Collins,  17  Abb.  Pr.  407.     pp. 

101.  397. 
Col  Iyer  v.  Stennett,  5  Scott  N.  R.  34.     p. 

17. 
C.iliaan    v.  Clements,  23   Cul.  245.    pp. 

1 12,  390. 
Colonel  Ledyard  (The),  1   Sprngue,  630. 

J).  222. 
Colt  r.  Noble,  5  Mass.  107.     p.  209, 
Colton  r.  Smith,  Cowp.  47.     p.  05. 
Columbian  Ins.  Co.  v.  Catlett,  12  Wiieat. 

380,  3S7.     p.  100. 
Columbus  Ins.  Co.  i>.  Lawrence,  2  Pet.  49. 

p.  291. 
Comfort  ('.  Duncan,  1  Miles,  229.     p.  209, 
Conuuercial  i'«ank  c.  iJencdiet,  18  B.  Mon, 

307,     p.  212. 
Commercial    Bank    r,   Cunningham,   24 

Pick.  270.     p.  143. 
ConmuTcial,  etc..  Bank  v.  First  National 

Bank,  30  Md.  11.     p.  211. 
Conun(!rcial,  etc.,  Bank  y.  Ilamer,  7  How. 

(Miss.)  448.     p.  206. 
Common  ial    Bank    v.    Kortwright,    22 

Wend.  348.    p.  248. 


T 


XXV  111 


TABLE   OP    CASKS    CITED. 


;i:|| 


I 


Commercial  Bank  v.  Newport  Man.  Co., 

1  IJ.  Moil.  14.     p.  214. 
Commercial  Bank  v,  Norton,  1  Hill,  601. 

p.  280. 
Coniincrcial    Bank  v.   Union  Bank,    19 

Bail).  ;«)2.    p.  in;j. 
ComiiiiTcial  Biuik  r.  Union  Bank,  11  N. 

Y.  UO.!.     p.  210. 
Commercial  Bank  r.  Varnum,  3  Lans.  90. 

p.  455. 
Commercial,  etc,  Ins.  Co.  v.  Union,  etc., 

Ins.  Co.,  19  How.  JUS.     p.  82. 
Commercial  Steani-liip  (.'o.    r.  IJoulton, 

L.  K.  10  q.  B.  ;i4t;.    ji.  408. 

Commonwealth   (Tin;)   c.   Blaisdell,    107 

Mass.  2;!4.    p.  ;5.;i. 
Cominoiiwciillh     (Tl:e)     v.    Hide     and 

Leather  Ins.    Co.,  112  Mass.   13G.     p. 

2()0. 
Commonwealth  (The)  v.  Mayloy,  57  Pa. 

St.  291.     p.  40. 
Commonwealth  (The)   v.   Ohio,  etc.,  R. 

Co.,  1  Grunt  Ca^.  :!2'.).     p.  51. 
Cunistock  V.  Smith,  20  Mich.  ailS.     p.  ,S17. 
Conklin  v.  Barton,  4:i  Barb.  4;!5.     p.  284. 
Connecticut,  etc.,   li.  Co.,  v.   Baxter,  32 

Vt.  805.    p.  408. 
Conner  v.  Robinson,  2  Hill  (S.  C),  354. 

p.  1!)0. 
Connor  v.  Henderson,  15  Mass.  319,    p. 

311. 
Conover  v.  Wardell,  20  N.  J.  Eq.  206. 

p.  3fi4. 
Conro  V.  Port  Henry  Iron  Co.,  12  Barb. 

o3.     p.  244. 
Conseqiui  v.  Farming,  3  Johns.  Ch.  587. 

p.  817. 
Consecjiia  v.  "Willings,  1  Pet.  C.  Ct.  225, 

p.  129. 
Consolidation  Coal  Co.  v.  Shannon,  34 

Md.  144.     p.  227. 
Constable  v.  Nicholson,  14  C.  B.  (n.  s.) 

230.     p.  331. 
Converse  c  Norwich,  etc.,  Transp.  Co.,  33 

Conn.  100.  pp.  210,  217. 
Conway,  Ex  parte,  4  Ark.  302,  367.  p.309. 
Coolidger,  Brij^ham,  1  Mete.  547.  p.  311. 
Coolidge  V.  Learned,  8  Pick.  504.  p.  28. 
Cooper  V.  Barber,  3  Taun.  99.  p.  331. 
Cooper  V.  Berry,  21  ( !a.  520.  pp.  SO,  242. 
Cooper  V.  Kane,  19  Wond.  386.    p.  339. 


Cooper  V.  Purvis,  1  Jones  L.  141.    pp.  78 

471. 
Cooper  V.  Sn\ith,  15  East,  103.     p.  378. 
Cook  r.  Cliamplain  Transp.  Co.,  1  Denio, 

92.     p.  319. 
Cook  V.  Darling,  2  R.  L  385.     p.  208. 
Cooke  V.  England,  27  Md.  14.     p.  435. 
Cooke  V.  Fiske,  12  Gray,  491.     p.  43. 
Coolie  V.  State  National  Bank,  52  N.  Y. 

90 ;  50  Barb.  339.     p.  205. 
Cookcndorfcr  i:   Preston,    4   How.   317. 

pp.  20,  81. 
Cope  V.  Cordova,  1  Hawie,  203.    p.  224. 
Cope  y.  Dodd,  13  Pa.  St.  33.     pp.  40,  237. 
Copeland  V.  Mercantile  Ins.  Co.,  6  Pick. 

198.     p.  29(5. 
Corbet  y.  Underwood,  83  111.  324.    pp. 

231 ;,  4:55. 

Corbin  v.  Sistrnnk,  19  Ala.  203.    p.  365. 
Corbitt  V.  Bank  of  Smyrna,  2  llarr.  (Del.) 

235.     p.  210. 
Corinack  v.  Gladstone,  11  East,  347.     p. 

254. 
Corning  v.  Ashley,  4  Denio,  354.     p.  84. 
Correa  v.  Frietas,  42  Cal.  341.     p.  390. 
Cort  V.  Birkbci  k,  1  Doug.  218.     p.  17. 
Cortelyou  v.  Van  Bruudt,  2  Johns.  357. 

p.  387. 
Corwin  v.  Patch,  4  Cal.  204.     p.  451. 
Costigan  v.  Hawkins,  22  Wis.  74.     p.  311. 
Couch  V.  Watson  Coal  Co.,  46  Iowa,  17. 

p.  43. 
Coventry  v.  Gladstone,  L.  R.  4  Eq.  491. 

p.  40. 
Cowell  V.  Simp.son,  16  Ves.  275.     p.  241. 
Cox  y.  Charleston,  etc.,  Ins.  Co.,  3  Rich. 

L.  331.     pp.  68,  257,  268. 
Cox  V.  Hickman,  8  U.  L.  Cas.  268.     p. 

279. 
Cox  ('.  O'Ri'ey,  4  Ind.  36*.     pp.  22,  lOOv 
Cox  y.  Peterson,  30  Ala.  tiOS.     p.  436. 
Coxo  V.  Heisley,  \^  Pji.  St.  243.     pp.  242, 

307,  430. 
Coyle  V.  Gozxler,  'i  Cranoh  C.  CL  625. 

pp.  81.  112. 
Co/.zins  u.  Whittaker,  3  Stew.  &.  P.  322. 

p.  :^.00. 
Cragin  ».  Carleton,  21  Me.  493.     p.  284. 
Craig  w.  Dale,  1  Watts  &  S.  509.    p.  2tJ9. 
Cram  v.  Bangor  House  Proprietary,  12 

Mo.  3ol.    p.  246. 


TABLE    OF   CASES   CITED. 


XXIX 


pp. 


311. 
17. 

491. 


12 


Crane  w.  Pratt,  12  Gray,  :i4«.     p.  SKi. 
Cranwfll  v.  The  Fanny  Fosdick,  16  L:.. 

An  430.     pp.  222,  242. 
Crawford  v.  Clark,  10  111.  .5t;i.     pp.  33, 

220. 
Crawford  r.  Hunter,  8  Term  Kop.  13.    p. 

291. 
Crawsliay  v.  Homfray,  4  Harn.  &  Aid.  50. 

p.  242." 
Croikor  c.  People's  Mutual  Ins.  Co.,  8 

Cusl).  79.     p.  40(). 
Crocker  v.  Sehureman,  7  Mo.  App.  358. 

pp.  329.  455. 
Crofts  r.  Marshall,  7  Car.  &  P.  597.    p. 

439. 
Croshie  v.  McDoual,  13  Vps.  138.    p.  291. 
Croshy  i'.  Fitch,  12  Conn.  410.    pp.  136, 

143,'2.'')4. 
Crosby  v.  Hetherington,  5  Scott  N.   R. 

«i37.    p.  17. 
Crosliy  V.  ^lason,  32  Conn.  432.    pp.  317, 

31S." 
Croshy  v.  Wyatt,  23  Me.  15ii.      p.  386. 
Cross  r.  Beard,  26  N.  Y.  85.     p.  227. 
Cio-s  ('.  Eglin,  2  IJarn.  &  Adol.  lOil.     pp. 

337,  451. 
Cross  i\  Ilaskins,  13  Vt.  536.    p.  292. 
Crofis  V.  Smith,   1  Man.  &  Sel.  555.    p. 

14.3. 
Crouch  V.  Credit  Foncier,  L.  U.  8  Q.  B. 

374.    pp.  103,  214. 
Croucher  v.  Wilder,   98  Mass.  322.     p. 

227. 
Crowell  !•.  Wostcrn  Reserve  Bank,  3  Ohio 

St.  403.    p.  284. 
Crupper  u.  Cook,  L.  R.  8  0.  P.  194.     p. 

298. 
Cuck  t'.  Quackenbuah,  13  Hun,  107.    p. 

330. 
Culling  V.  Tuffnall,   Bull.  N.  P.  34.    p. 

271.^ 
Cuinming  v.  Shand,  5  Hurl.  &  N.  95.     pp. 

38.  40. 
Cunningham  v.  Fonblanque,  6  Car.  &  P. 

44.     pp.  100,  276. 
Cunningham  v.  Morrill,   10  Johns.  203. 

p.  279. 
Curiau  V.  Crawford,  4  Serg.  &  R.  3.    p. 

&1. 
Carrie  r.  Smith,  4  N.  Y.  Leg.  Oba.  848. 

p.  46. 


Currier  v.  Boston,  etc.,  R.  Co.,  34  N.  H. 

4'.t8.     p.  394. 
Gushing  l:  Smith,  43  Texas,  261.     p.  284. 
Cuthbcrt  /).  Cumming,  10  Kxch.  809;   11 

Kxch.  405.     pp.  111,410. 
Cutter  V.  Powell,  2  Smith's  Ld.  Cas.  21 ; 

6  Term  Rep.  320.     pp.  120,   180,  278. 

279. 

Da  Costa  v.  Edmunds.  4  Camp.  141.     p. 

'221. 
Daihy  >\  Hirst,  3  J.  B.  Moo.  666;  1  Brod. 

&  B.  224.     p.  269. 
Dalton  ,}.  Dani.ils,  2  Hilt.  472.     p.  .304. 
Dana  V.  Brown,  I  J.  J.  Marsh.  304.     p. 

246. 
Dana  v.  Fiedler,  1  E.  D.  Smith,  403.     p. 

375. 
Dana  v.  Fiedler,  12  N.  Y.  41.     p.  378. 
Danfurth   v.    Schoharie,   etc.,    Turnpike 

Road  Co..  12  .Johns.  227.    pp.  146,  244. 
Daniels  v.  Hudson  River,  etc.,  Ins.  Co., 

12Cush.  416.     pp.  258,  405. 
Daniels  vi.  Kyle,  1  Kelley  (Ga.),  304.     p. 

208. 
Daniels  v.  Pond,  21  Pick.  367.     p.  267. 
Darling   v.  Slanwood,  14  Allen,  504.     p. 

289.' 
Daubigny   v.  Duval,  5    Term  Rep.  604. 

p.  290. 
Daun  0.   City  of  London    Brewery   Co., 

L.  R.  8  Eq.  155.    pp.  36,  56    453.  473. 
Davidson  v.  Moscrop,  2  East,  5ti.    p.  17. 
Davis  n.  Adams,  18  Ala.  2t)4.     p.  315. 
Davis  V. Galloupe,  111  Mass.  121.     p.  442. 
Davis  0.  Ilanly,  12  Ark.  64-5.    p.  96. 
Davis  V.  .Jones,  2  Barn.  &  Aid.  166.     p. 

271. 
Davis  V.  Miller,  14  Gratt.  1.     p.  214. 
Davis  r.  Moody.  15  Ga.  175.     p.  3f;4. 
Davis  r.  Morgan,  1  Cromp.  &  J.  587.     p. 

463. 
Davis   I).  Richardson,  45  Miss.  499.     p. 

280. 
Davis  y.  Shaw,  42  .Md.  410.    p.  364. 
Davis  u.  Waddington,  7  Man.  &  G.  42. 

p.  463. 
Davison  v.  Powell,  16  How.  Pr.  467.     p. 

83. 
Dawes  V.  North  River  Ins.  Co.,  7  Cow. 

462.    p.  245. 


^ 


xxx 


iahi-k  ok  <;asich  (mtki*. 


Dmwsoi,    ,..    KiUl.',   1    Hill.    107.      pp.   4r,, 

10.-.,  :!S7. 

Dmv   r.  II. .lines,   KK!   Mush.  ;l(»ti.      pp.  HHI,   , 

.".17. 

I>|\    r.    l.oclvWcn.l,   1\  ('.>mi.    IHC.       p.  ;1I7. 

I>.i\   /■.   i;  i!.ni,a,   I  I    Minn.  Tt'.     p.  WW. 
l>Mvli-,lil  I'.iini.'r  CiimC...  c.  Oillin,  f)l    N. 

II.  .r..     p.    isi. 

I»(:in  /■.  Mm-c.,1,  I  Coim.  I'M.     p.  :;()(;. 
I>i';in  I'.  SwiKip, 'J  liihM.  ,'.'..      p|>.  101,   l'.M. 
Mi'MM  ..r  Kly  r.  \V:nivn,  'l  Alk.   IS  i.      pp. 

'■VI.  li.'i. 
I>r:ni  of  l''.Tncs((!:isn  of  111.').  I>.i\  ics,  f..'l. 

p.  Jl::. 
D.'liL.is  ,-.  (>.'c:in  lii.M.  Co..  lii  I'i.k    ::o:). 

p. -J.-.  I. 

D.'.U.'U  ,-.  li,.u,ll.  \i  ('ill.  t;; ;.    p.  •.■so. 

Dc  i"ii|i-i|  r.   I''iilliiii   {■'ii-.'  Ins.  Co.,  I    ILill, 

III.  pp.  71, -J'.il.  I 
l>i'  lli'i-li'l   I'.   Supple,     II    I'ppcr  Cmiiiilii 

Cli.     I  !1  ;    l;;     Cpp.'i    C:inii.l!i    Cfc.   (.IS.    ' 
pp.   10,  •'■'..  j 

l>rl:liu\     r.    t^[oAAiwU     I     'rt'i-in     Ui-p.   -ll. 
p.-M. 

n.liipl.iiH'    r.   Cn'nsli:nv.    IT.   (Jnitl.     1">7.    \ 

|.p.  ■:  ■■.  lis.  7  1.  I"..;. 

P.-liipl.-iih.   r.    llo\!:ll.    !.">  (Ji'Mll.    I'.'.t.      p. 
Oi'loii:;ui'n\:iri>  r.   'rriiili'sMiinrs    Ins.   l,'..., 

•J  iimII.  r.s'.i.    p.  •:.,(). 

D.'ini  /■.  r.ossfr.  1   I'.Miii.  •11\.     p.  'JiUt. 
l>.'  Moll  r.    l,;U!i\vav,   II  WtMul.  'llu.      p. 

1;m. 

n.'im  r.  S|il';iy,  1  Ti'VIll   IJcp.  ll'.ti.      pp.  17, 

I  OS. 
hi'iisoii    /'.   Stewart,  IT)   Lii.    .\ii.  X'liS.     p. 

•J'.M. 
Oonsion  r.  I'l'rkiiis,  2  I'i.k.  Sii.     p.  ;?1 1. 
l>i'nt  r.  Noiih  .Viiii'rii'iiii  Sti'iiiiiship  (.'o., 

!■>  N.  v.. '.'10.     p.  licit. 
5).sh:i    V.  Il..lhui.l,   12  Alii.  ni;!.     pp.  ('.;!, 

:'.iV.. 

i>.-iru>r  r.  iv-.T-!.  ;!'J  Hi.  ;'>.'.s.    p.  ;;o"). 

Do  sr.va'a'  r.  K.uuiall,  4  M;iu.  vV;  Sol.  ;!7. 

p.  •!-,. 
\\'  Tastet  r.  Crou-sillnt,  '1   Wnsli.   C.  Ct. 

WVl.     p.  2',11, 
lli>t.>uolu'S   I'.    Pock,    9    .lolms.  210.     p. 

•I'M. 
Detroit  Advrrtiser,  etc.,  Co.   i-.  City  of 

Detroit  (Sup.  Ct  Mich.),    p.  443. 


Deln.il,  I'lc.  It.  Co.  r.  Viiri  Sloiiihnrf,',  17 

Mieli.  ll'.t.     p.    II. 
\hi  Wolf  r.  .I..lins,.ii,    10  Wli.Mlt.  ;!L';i.      p. 

III. 
Di.niiond    ('.    Iliirris,   .'!;!    Tcxus,    (ilil.     p. 

211. 
Di.'Ucns  j>.  .Jones,  C.  Yer-,'.  •IH.'t,      p.  ICH. 
Di.-loTson  e.  S.'i-lv.-,  12  Kiiil>.  OO.      p.  4 OH. 
hi.kiMsoii  I'.  City  ol' l".Mli;likeepsie,  75  N. 

\  i.i;.    p.  101. 

Diil-in  nil   /'.  (;m\,   7   Allen,    .'!2.     pp.  'li\, 

.■;os.  .'ICO,  1 1 '.I,  I  's.  .p-;|,  IS.',. 
I  >iikiii.-iin   IK    liilwiill,    4   Ciinip.   270.     p. 

2si;. 

l)i.Uins.,n  ,.  \-.ilpy,  10  |{,irn  »VCre.ss.  128. 

pp.  •-'M,  "SI. 
I>ii  ^'..n  r.  \\  mIit  Conimis^ioner.s,  2  linn, 

111...     p.  ;;o:i. 
Diilrieli    /'.    I'.'nnsylviiniii   I!.  (Jo.,   71  I'a. 

St.  |;;2.     p.  .''•o. 
I»ike  ,-.   I'..,. I,    |.".   Minn.  .■;|.">.      p.   |0,S. 
Dill  c.  Ciinip.  22  Ahi.  210.     p.  ;!II. 
|)illin;;liMni  r.  Snow,  7  M:iss   r(l7.      |).  4(i8. 
Din-li-  '•.    IImiv,   7   C.    15.  (n.  h.)  14.'..     p. 

2sr.. 
Diiisninre   ,•.   N'Msliville,   etc.,    It.    Co.,    10 

('.•lit.  1,.  ,1.   (li-.      p.  2.'.2. 
Diploik    /•.   IMiiekl.urn,  .!  C:iinp.  4;!.     pp. 

2'.i|,  2:i.",,   170,   |s.-,. 
Dixon  i:  Diinliini.  I  I  IN.  .■;2I.      pp.  44,  63, 

72,  224,   2. 'II,  4 :!l. 
Donne  r.  Diinlnini.  70  111.  VM.      p.  '\\',\. 
DoMiie  r.  llu-^i'll.  :;  (Jmy,  I'.SU.      p.  •J:{8. 
Dol.son   ,•■.  Sotliel.y,   I    Moo.  iV-  M.  00.      p. 

2i;2. 
1).h1,1  r.  K:irlow,  11    Allen,  42(1.      pp.70, 

;!07,  I2S.  4S2,   ISl. 
D  ..lnv  V.  Hiirlol,  5  (Jiveiil.  2Sr,.      p.  221. 
Do.lj;-.'  r.  Kiiv..!-,  ir.CJray.  H2.    pp.  45,  lO.'J, 

27S. 
Doe  e.  .Mien.  12  A. I.  .V    K.  4.".1.      p.  :!08. 
Doe    c.  lU'iison,  4    liarn.  A:.    .\lil.  i")S8.     p. 

270. 
D.u'  r.  M.'viss,  ISL.  .1.  (C.  P.)  028.    p.  ;5(ifi. 
\)o,'  i:  I?.. 1.1,  II  «J,  I!.  120.     p.  244. 
Doe   ,'.  Hiseoek-.,   T.    Meo.   &  W.   'M;].     p. 

:'.ii4. 
D..0  r.  Lea.  11  Kast,  .".12.     p.  270. 
Doo  P.  Uobiiisoii,  ;{  Uiiig.  N.  C.  077.    p. 

288. 
Doc  V.  Snowdcii,  W.  Black.  1226.    p.  174. 


lAIJI-K   OF   fASK^    (;ITKI>. 


XX,XI 


P(.(!  r.  Stiiivcpti.  I  .M<<:.  \,  W.  «1!»5.  p.  .'{70. 
Don  i;.  Slillwfrll,  H  Ail.  A  K.  tl4f).  p.  270. 
IhH-  IK  Tiirr»ir(],  .'{  Hurn.  &  Adol.  HOO.     p. 

H2. 
DiiiiiiiiKO  t).   Mcr'-linnts'  Ins.  ()<>.,  V,i  lift. 

An.  4MI.     p.  :i:il. 
Uorinoll  i>.  Colnriiliiitfi   Iiih.  Co.,  2  Siiiiin. 

.')C,7.     |)p.  21,  ;{ti. 
|)iiril(7  i>.  IJimli,  44  Toxhh,  1.     p.  Jt'll. 
I  )()r('hfi''tt'r,  ol(;.,    Iliitik    ».    .N'l-w  Kin^liind 

Htuik,  I  CiwIk  177.     pp.  M,  W,  -IH'.i. 
DnrHoy  V.  KiiL'l<!,  7  dill  &  .].:»].     p.  2(;'J. 
DorHoy  v.  I'liillipH,  <;t,('.,  (."oriHlrncliDn  ('<>., 

42  Wis.  583.     p.  ;i27. 
Doiinht.y  I'.  I'hk"'  ''^    lowii,  4H8.     p.  :{();{. 
Dow  I).  WlniUon,  H  Woiid.  ItlO.     pp.  2f)>), 

40;{. 
Downs  I).  Spnij^ue,  1  Abb.  App.  Doo.  550. 

p.  :!7f). 
Doyle  IK  Laslior,  Itt  Up[»(!r  (Junuda  C.  I'. 

2B;i.     p.  815. 
Driccoll  ,..  WcHt  HniiJlcy  K.  Co.,  5'»  N.  Y. 

'M.     |).  24ti. 
Driiinniond  r.  Altornfiy-Genoral,  2  11.  L. 

Ciis.H;i7.    p.  ;'.<;h. 

Dubcrley  e.  Paige,  2  Term  Rep.  301.     p. 

;t2. 
DuboiH  I'.  Dcliiwaro,  etc.,  R.  Co.,  12  Wend. 

;W4;  16  Wend.  87.     p.  H'.W. 
Dufl'  0.  Uudd,  0  J.  B.  Moo.  4t)'.».     p.  136. 
DiiH'r.  Biidd.  3  Brod.  &  B.  177.     p.  225. 
DiifjHi-d  I'.  K.iwiirds,  50  Biirb.  280.     p.  45. 
Duke  of  Bcidiifort  v.  Neeld,  12  CI.  &  Fin. 

21)0.     p.  2H<1. 
Doylo  V.  St.  Jani('.s'  Church,  7  Wend.  178. 

p.  317. 
Drake  ik  Qoroc,  22  Ala.  40!>.     p.  279. 
Dnikc  (,'.  Hudson,  7  liar.  &  J.  399.     p. 

102. 
Drake  v.  Ilaiiiey,  3  Kich.  L.  37.     p.  283. 
Druko  I).  Wii,'lcsworth,    Willea,   t)64.     p. 

tJG. 
Drennan  v.  House.  41  Pa.  St.  30.     p.  284. 
Dresser  w.  Norwood,  17  C.  B.  (n.  8.)  4W>. 

p.  292. 
Drew  i;.  The  Chesapeake,  2  Dou^.  33.     p. 

324. 
Duke  of  Beaufort  v.  Smith,  4  Exch.  450. 

p.  26. 
Duke  of  St  Albans  ».  Shore,  1  H.  Black. 

274.    p.  270. 


Diitiiont  V.   Kello:^!^,    2'.»    Mirh.    IJO.     p. 

6'6ii. 
DiiMfiin  V.  Berlin,  46  N.  Y.  685.     p.  46H. 
Duncan  r.  (iretin,  43  lowii,  37H.     452. 
Dunciin  ,K  Mill,  L.  It.  •!  Kx<h.  265;  L.  K. 

8  Kxch.  '^42.     p.  288. 
Iluncun  ('.  IiOwnd<:H,  3  (."iitnp.  478.     p.  2''0. 
Dunliitrn   ».  Dcy,  13  .lolitis.  40.      p.  i'lH. 
Durihiitn  ».  Oould,  lO-IulinM.  :'.'i7.      p.  4"ih. 
Dundee  lliirbor TniHlecs  v.  Duuj^dll,  1  Sc. 

App.  Ciw.  20.     p.  463. 
iJunn  0.  Kerlor  ol"  St.  Andrew'H  Church, 

HJulins.  118.     p.  244. 
DiinscMi  r.  WikIo,  3  111.  285.     p.  229. 
j    Durliiim  IK  .Musmilmiin,  2  Blackf.  96;   18 

Am.  Dec.  133.     p.  X'.2. 
Dutch  ,).  HarriH.in,  37  N.  Y.  S.  C.  (T.  & 

(J.)  30ii.     p.  435. 
Dut<;h  Klul  Witter  Co.  o.  Mooney,  12  Citl. 

5:!4.     pp.  1 12,  390. 
Dutchess   Cotton    Man.   Co.   v.  Davis,  14 

.JohriB.  2.38.     p.  463. 
Dutton  V.  Wilner,  52  N.  Y.  313.     p.  294. 
Dutton  ».  Woodman,    9   Cush.    265.     p. 

284. 
Duv.-ill  V.  Bank,  1   Gill  &  J.  31  ;  9  Gill  & 

.}.  31.     p.  40. 
Dwi^^ht  w.  Brewster,  1   Pick.  50;   II  Am. 

Dec.  133.     pp.  144,  214,  21.5,  2'.)0. 
Dwif^lit  IK  .Vliiyor  of  Boston,  12  Allen,  316. 

p.  455. 
Dyce  V.  Hay,  1  .Macfj.  H.  L.  Caa.  .305.     p. 

331. 
Dyor  V.  Sutherland,  75  111.680.     p.  293. 
Dykera  ».    Allen,    7   ilill,   497.     pp.  22, 

445. 

Kiijrle  V.  White,  6  "Whart.  .505.     p.  225. 
Eaf,'lu  Bank  v.  Chapin,  3  Pick.  180.     p. 

209. 
Eager  n.  Atlas  Ins.  Co.,  14  Pick.  141.     pp. 

96,  136,  143,  266,  465. 
Ear)    of   Buckini^liainshiro    v.  Drur}-,    2 

Eden,  74.     p.  462. 
Karl  of  Falmouth  o.  Thomas,  1  Cromp.  <& 

M.  89.     p.  267. 
Earl  of  Manchester  v.  Vale,  1  Saund.  28. 

p.  32. 
Early  i>.  Garrett,  9  Barn.  &  Cress.  928. 

p.  306. 
Early  v.  Reed,  6  Hill,  12.     p.  286. 


i  M 


I>       I 


xxxu 


TABLE    OF   CASES    CITKD. 


'•:     I 


Enstcourt  v.  Weekes,  1   Lutw.  799.    p. 

172. 
East  India  Co.  v.  Henchman,  1  Ves.  jr. 

289.     p.  294. 
East  India  Co.  v.  PuUen,  2  Stra  690.    p. 

221. 
East  London  Water-Works  c.  Bailey,  4 

Bing.  288.     p.  244. 
Eastman  t>.  Clark,  58  N.  H.  276.     p.  280. 
EaHtman  v.  Coos  Bank,  1  N.  H.  26.     p. 

244. 
East.. II  V.  Clark,  35  N.  Y.  282.     p.  286. 
East  River  National  Bank  v.  Gove,  57  N. 

Y.  507.     p.  20'1. 
Kiiton  V.  Smith,  20  Pick.  150.     p.  368. 
Ecker  ».  Monro,  2  Chand.  85.     p.  108. 
Eddowcs  r.  Hopkins,  Doug.  361.     p.  317. 
Eddy  V.  Faulkner,  3  Yeates,  580.     p.  33;{. 
Eddy  (The),  5  Wall.  481.     p.  242. 
Pkla^erly  v.  Emerson,  23  N.  H.  566.    p. 

245.' 
Edie  y.  East  India  Co.,  1  W.  Black.  295; 

2  Burr.  1210.     pp.  20,  100,  192. 
Edmonson  o.  Thompson,  2  Fost.  &  Fin. 

504.     p.  284. 
Edwards  v.  Goldsmith.  16  Pa.  St  43.    p. 

293. 
Edwards  c.  Grand  Junction  Canal  Co.,  1 

Myl.  &  Cr.  659.     p.  244. 
Effinj^or  V.  Ilenderson,  33  Mi.ss.  449.     p. 

318. 
Eggleston  )'.  Boardman,  37  Mich.  14.     p. 

303. 
Eicke  V.  Meyor,  3  Camp.  412.     p.  293. 
Eldridge  i:  Smith,  13  Allen,  140.     p.  278. 
Eliason  v.  Henshaw,  4  Wheat.  225.     p. 

362. 
Elliot  V.  Wilson,  4  Bro.   P.  C.  470.    p. 

254. 
Elliot  V.  Rossell,    10  .Johns.  9;    6  Am. 

E^c.  306.     pp.  126,  129,  130. 
Ellis  V.  Ohio  Life  Ins.  Co.,  4  Ohio  i<t.  628. 

pp.  2.3,  211. 
Ely  V.  Hanford,  65  111.  267.     p.  294. 
Ely  V.  New  Haven   Steamboat  Co.,   53 

Barb.  207.     pp.  108,  220,  230. 
Emanuel  i-.  Dnuighn,  14  Ala.  308.     p.  283. 
Emerson  v.  Providence  Hat  Co.,  12  Mass. 

241.    p.  288. 
Emery  v.  Dunbar,  1  Daly,  408.     pp.  71, 

237,  477,  485. 


Emery  v.  Gerbier,  2  Wa.sh.  C.  Ct.  4 1 8.    p. 

290. 
Emery  v.  Hersoy,  4  Grcenl.  407.     p.  215. 
Emmons  v.  Lord,  18  Me.  351.     p.  279. 
English  O.Johnson,  17  Cal.  107.     pp.  103, 

390. 
Ensworth  o.  New  York,  etc.,  Ins.  Co.,  7 

Am.  L.  Reg.  382.     p.  297. 
Erben  v.  Lorillard.  2  Koyps,  567.     p.  294. 
Erie  R.  Co.  v.  Ackerson,  83  N.  J.  L.  34. 

p.  318. 
Erie,  etc.,  Transp.  Co.  v.  Dater,  8  Cent.  L. 

J.  298.     p.  242. 
Erwin  r.  Clark,  13  Mich.  10.     p.  485. 
Erwin  c.  Saunders.  1  ("ow.  249.     p.  864. 
Esterly  ».  Cole,  3  N.  \\  502.     pp.  52,  198. 

817." 
Etheridge  v.  Binney,  9  Pick.  272.     p.  282. 
Euroka  Ins.  Co.  v.  Robinson,  56  Pa.  St. 

256.     p.  79. 
!   Evans  v.  Bidwell,  20  Conn.  209.     p.  331. 
Evans  v.  Commercial  Ins.  Co.,  6  R,  I.  47. 

pp.  103,  402. 
Evans  17.  Pitchburg,  etc.,  R.  Co.,  Ill  Mass. 

142.     p.  221. 
Evans  v.  Hesler,  1  Bibb,  561.     p.  332. 
Evans  v.  Myers,  25  Pa.  St.  114.     p.  454. 
Kvans  v.  Ogilvie,  2  You.  &  J.  79.     p.  105. 
Evans  v.  Potter.  2  Gall.  18.     p.  290. 
Evans  i;.  Pratt,  8  Man.  &  G.  759;  4  Scott 

N.  R.  378.     p.  389. 
Evans  v.  Wain,  71   Pa.  St.  69.     pp.  293. 

377. 
Evansville  National  Bank  v.  Metropolitai* 

Bank,  2  Biss.  527.     p.  247. 
Evansville,  etc.,  R.  Co.  v.  Young,  28  Ind. 

516.     p.  242. 
Eveleth  r.  Wilson,  15  Me.  109.     p.  364. 
Everett  v.  United  States,  0  Port.  182.     p. 

244. 
Everhart  v.  Searle,  71  Pa.  St.  250.     p.  294. 
Ewing  V.  Beauchamp,  4  Bibb,  4',tii.     p. 

278. 
Exchange  Bank  v,  Coleman,  1  W.  Va.  69. 

p.  435. 
Express  Co.  v.  Kountze,  8  Wall.  842.    p. 

229. 
Eyre  v.  Marine  Ins.  Co.,  5  Watts  &  S. 

116.     p.  254. 
Ezell  V.  English,  6  Port.  307.    p.  436. 
Ezell  V.  Miller,  6  Port.  807.    p.  436. 


M 


TABLE   OF    CASKS    flTKh. 


XXXIIl 


p.  294. 
L.  34. 


''a.  69. 

i2.  p. 


Frtbhri  V.  Phoenix  Ins.  Co.,  65  N.  Y.  V2'X 

1-.  2'>1. 
FairHoia  k.  Adnms  1«  Pick.  3H1.     p.  'JOH. 
Fnirlie   r.  Fentoii,   L.   R.   5  Exch.   109. 

pp.  92,  93,  301. 
Fnirman  v.  Oaitford,  5  Hurl.  &  N.  635. 

p.  278. 
Falconer  o.  Garrison,  1  McCord,  209.    p. 

Fiilkner  v.  Earlo,  3  Best  &  S.  :^60;  32  L. 

J.(Ci.  B.)  124.    pp.92,  106. 
Fiiiikboner  u.  Fankboiier,  20  Ind.  62.     p. 

31)4. 
Fnrlow  t:  Ellis,  15  Gray,  229.     pp.  37, 

nu. 

Favquharson    v.  Hunter,  Park.   105.     p. 

254. 
Farmers'  Bank  v.  Duvall,  7  Gill  &  J.  78. 

p.  207. 
Farmers'  Bank  v.  Vail,  21  N.  Y.  485.     p. 

209. 
Farmers',  etc.,  Bank  v.  Butchers',  etc.. 

Bank,  16  N.  Y.  126.     p.  205. 
Farmers',  etc..  Bank  r.  Erie  K.  Co.,  72  N. 

Y.  188.     pp.  229,  437. 
Farmers',  etc..  Bank  r.  Logan,  74  N.  Y. 

508.     p.  435. 
Farmers',  etc..  Bank  v,  Sprague,  52  N.  Y. 

(i05.     p.  46. 
Farmers  and  Mechanics'  Bank  v.  Day,  13 

Vt.  36.     p.  378. 
Farmers  and  Mechanics'  Bank  v.  Cham- 
plain  Tnin«p.  Co.,  16   Vt.  52;   18  Vt. 

131 ;  23  Vt.  186.     pp.  133,  142,  226. 
Farmers', etc.,  National  I3ank  (\  Sprague, 

52  N.  Y.  605.     p.  293. 
Partisworth  r.  Chase,   19  N.  H.  535.     p. 

805. 
Farnsworth   ».  Hemmer,  1    Allen,   494. 

pp.  296.  480,  485. 
Farrar  v.  Stackpole,  6  Me.  154.     p.  388. 
Farwell  w.  Fay,  7  Mo.  595.     p.  386. 
Fatmun  v.  Thompson,  2  Disnev,  482.     p. 

307. 
Favenc  o.  Bennett,  11  East,  38.     p.  292. 
Favicll  (1.  Gascoigne,  7  Exch.  273.     pp. 

78,  269. 
Fawcett  v.  Lowther,  2  Ves.  300.     p.  64. 
Fawkes  v.  Lamb,  31  L.  .1.  (Exch.)  168; 

8  Jur.  (n.  s.)  385.    pp.  380,  386. 
Faxon  y.  Mollis,  13  Muss.  428.     p.  84. 


Fay  I'.  Alliance   Ins.  Co.,  16  (riay.  4'>"» 

pp.  :)•-',  40'.. 
Fay  '•.  Kichmond,  43  Vt.  2'..     p.  2S.;. 
Fay  V.  Strawn,  32  111.  295.     p.  435. 
Fayles  w.  National  Ins.  Co.,  49  Mo.  350. 

p.  244. 
Fazakerley  c.  Wiltshire,  1  Stra.  466.     p. 

463. 
Fcctor  r.  Heath.  11  Wend.  477.     p.  200. 
Felix  (The),  2  Ad.  &  K.  273.     p.  225. 
Felluwes  r,  Maj'or  of  New  York,  17  Hun. 

249.     pp.  37,  52. 
Feiidcrson  n.  Owen,  54  .Me.  374.     p.  361. 
Fenn  v.  Harrison,  3  Term  Rep.  757.     p. 

286. 
Fennings  v.  Lord  Grenville,  1  Taun.  241. 

pp.  282,  333. 
Fergason  o.  Clifford,  37  N.  H.  86.     p. 

314. 
Ferris   y.  Comstock,   33   Conn.  513.     p. 

375. 
Field  V.  Banker,  9  Bosw.  467.     p.  108. 
Field  V.  Kinnear,  4  Kan.  476.     p.  309. 
Field  y.  Lelean,  30  L.  J.  (Exch.)  68.     pp. 

362,  379,  380. 
Field  V.  Tenney,  47  N.  H.  513.     p  284. 
Fields  i:  Stunston,  1  Coldw.  40.     p.  214. 
Filgor  r.  Penny,  2  Murph.  182.     p.  46S. 
Firiley  u.  Wood,  1  Esp.  178.     p.  270. 
First   National    Bank   v.  Carpenter,    41 

Iowa,  518.     p.  280. 
First  National   Bank  w.  Hogan,  47  Mo. 

472.     p.  241. 
First  National  Bank  v.  Lanier,  11  Wall. 

369.     p.  247. 
First  National   Bank    v.  McManigle,  69 

Pa.  St.  156.     p.  316. 
First  National  Bank  v.  Kicker,  71  111.  439. 

p.  211. 
Fi-'her  o.  Geddes,  15  La.  An.  14.    p.  231. 
Fisher  «.  Leland,  4  Cush.  456.     p.  214. 
Fisher  u.  Sargent,  10  Cush.  250.     pp.  4'>, 

52. 
Fisher  v.  Western  Assur.  Co.,  11  Upper 

Canada  Q.  B.  255.     p.  40. 
Fiske  V.  Newton,  1  Denio,  45.    pp.  225, 

235. 
Fitch  r.  Carpenter,  43  Barb.  40.     p.  374. 
Fitch  V.  Fitch,  2  Esp.  543.     p.  105. 
Fitch  V.  Rawling,  2  H.  Black.  398.     pp. 

39,  40. 


"I 


'■  m 


m 


-it  J 


i  il 


XX  XIV 


TABI-E    OF    OASES    CITKI). 


Fit/j;iblji)n  v.  Kinney,  3  Harr.  (Del.)  317. 

p.  82. 
Filziicrbert  c.  Mather,  1   Term  liep.  12. 

p.  28ti. 
Fitzpatrick  v.  Fain,  3  Coldw.  16.    p.  315. 
Fitzsimmons   v.  Joslin,  21  Vt  129.    p. 

'2m. 

Flannnjjan  v.  Chioncro,  etc.,  R.  Co.  (Sup. 

Ct.  Wis.),     p.  32fi. 
Fleckner  r.  United  States  Bank,  8  Wheat. 

;i57.     p.  244. 
Fleet  II.  Murton,  L.  R.  7  Q.  B.  126;   1 

Monk's  Rep.  !12.     pp.  90,  100,  301,  882. 
Fletcher  v.  Seekell,  1  R.  I.  207.    p.  100. 
Flint  V.  Flint,  6  Allen,  34.     p.  214. 
Floyer  v.  Edwards,  Cowp.  112.     p.  458, 
Flureau  . .  Thornhill,  2  W.  Black.  1078. 

p.  870. 
Flynn  v.  Murphy,  2  E.  D.  Smith,  378. 

pp.  46,  54,  103. 
Foley  V.  Bell,  6  La.  An,  760.    p.  76. 
Foley  V.  Mason,  6  Md,  37.    p.  83. 
Polsom  V.  Merchants',  etc.,  Ins,  Co,,  88 

Me.  414.    p.  40. 
Forbes  v.  Omaha  National  Bank,  11  Cent. 

L.J.  209,    p.  206. 
Ford  V.  Mitchell,  21  Ind.  54.   pp.  215,  216, 

217. 
Ford  V.  Tirrell,  9  Gray,  401.    pp.  63,  391. 
Ford  V.  Yates,  2  Man,  &  G.  549 ;  2  Scott 

N.  R.  645.    p.  461. 
Forrester  (The),  Newb.  Adm.  81.    p,  465. 
Forrestier  v.  Bordman,  1  Story,  43.    p. 

290. 
Forsee  v.  Matlock,  7  Heisk.  421.    p.  82. 
Forster  v.  Clements,  2  Camp.  17.     p.  211. 
Forsythe  v.  Price,  8  Watts,  282.     p.  269. 
Fort  V.  Bank  of  Cape  Fear,  1  Phill.  L. 

417.    p.  210. 
Forward  v.  Pittard,  1  Term  Rep.  27.    pp. 

126,  136. 
Foster  v.  .lolly,  1  Cromp.  M.  &  R.  707. 

p.  365. 
Poster  r.  Mentor  Life  Assur.  Co.,  3  El.  & 

Bl.  48.    p.  265. 
Foster  o.  Robinson,  6  Ohio  St.  90.    p.  269. 
Fowler  v.  JEtna.  Ins.  Co.,  7  Wend.  270. 

p.  406. 
Fowler  v.  Pickering,  119  Muss.  33.     p.  .'•)8. 
Fox  V.  Black,  Park.  620.     p,  264. 
Fox  V.  Clifton,  6  Bing.  792.    pp.  280,  284. 


Fox  r.  Parkor.  44  Huib.  Vll.     p.  38t;. 
Foye  V.  Leigh  ton,  22  N.  il.  71.     p.  282. 
Franchot  v.  Leach,  5  Cow.  508.     p.  365. 
Frank  v.  Jenkins,  22  Ohio  SL  677.    p. 

284. 
Frankfort  Pank  v.  Anderson,  8   A.   K. 

Marsh.  932.     p.  244. 
Franklin  v.  Firth,  8  Bro.  0.  0.  433.     p. 

294. 
Franklin  Fire  Ins.  Co.  v.  Brock,  67  Pa. 

St.  74.      p.  407. 
Franklin  Fire  Ins.    Co.   v.  Chicago  Ice 

Co.,  32  Md.  102.     p.  262. 
Franklin  Fire  Ins.  Co.  v.  Updegraff,  43 

1  -.  St.  350.     p.  260. 
Franklin  Ins.  Co,  v.  Humphrey,  65  Ind. 

649,     p.  440. 
Frazier  v.  Harvey,  84    Conn.  469.      p. 

806. 
Frazier  v.  Warfield,  18  Md.  279.    pp.  457, 

462. 
Pieary  v.  Cooke,  14  Maes.  488.    p.  77. 
Fr<!derick  v.  Marquette,  etc.,  R.  Co.,  37 

Mich.  342.    p.  215, 
Fneman  v.  Bloomfield,  43  Mo.  891.    p. 

283. 
Freeman  v.  Carpenter,  1<'  Wis.  126.    p. 

281. 
Freeman  v.  Loder,  11  Ad.  &  E.  697.    p. 

21. 
Freeman  v.  Newton,  8  B.  D.  Smith,  246. 

pp.  216,  220. 
Freeman  v.  Phillips,  4  Mau.  &  Scl.  486. 

p.  17, 
French  v.  Backhouse,  6  Burr.  2727.    p. 

291, 
French  v.  Carhart,  1  N.  Y.  102.    p.  388. 
French  v.  Reid,  6  Binn.  308.     p.  291. 
French  «.  Sty  ring,  2  C.  B.  (n.  s.)  357.     p. 

283. 
Frith  V.  Barker,  2  Johns.  827 ;  2  Marsh. 

Dec.  208.    pp.  126,  237,  429,  466,  478, 

485. 
Fuller  V.  Naugatuck    R.  Co.,  21  Conn. 

657.    p.  322. 
Fulton  V.  Blake,  12  Am.  L.  Reg.  (n.  a.) 

779.    p.  227. 
Fulton  Bank  v.  Benedict,  1   Hall,  496. 

p.  143. 
Fulton  Bank  v.  New  York,  etc..  Canal 

Co.,  4  Paige,  186.    p.  143. 


TAIU.K    OF   CASKS    (ilTKD. 


XXXV 


t- 

^ 


Conn. 

(n.  8.) 

,  496. 

I  Canal 


FiilUm  Ins.  Co.  ».  Miliier,  23  Ala.  420. 

pp.  in.  -iru. 
Funk  V.  Kly,  45  l»ii.  St.  444.     p.  82. 
Furniss  v.  ilone,  8  Wend.  247.     pp.  314, 

315. 

Gnbay  ».  Lloyd,  8   Barn.  &  Cress.  793. 

pp.  48,  261, '252.  439. 
Gubay  v.  Lloyd,  5  Barn.  &  Cress.  797 ; 

5  Dears.  &  B.  C.  0.  641.    p.  414. 
Giidd  V.  Houghton,  L.  It.  1  Exch.  Div. 

357.    p.  301. 
Giihiifjen  v.  Boston,  etc.,  R.  Co.,  1  Allen, 

137.     p.  329. 
Giiirdner  v.  Senhouse,  8  Taun.  16.    p. 

264. 
(ialena  Ins.  Co.  r.  Kupfer,  28  111,  882. 

p.  450. 
Gallagher  v.  Shipley,  24  Md.  418.    p. 

267. 
Gallagher  v.  Waring,  9   Wend.  20.     p. 

308. 
Gallatin  v.  Bradford,  1  Bibb,  209.    pp. 

70,  468,  477,  485. 
Galloway  v.  Hughes,  1  Bailey,  563.    pp. 

193,  227,  281. 
Gallup  V.  Lederer,  1  Hun,  282.    pp.  69, 

100. 
Gard  v.  Callard,  6  Mau.  &  Sel.  69.  p.  17. 
Gardiner  v.  Gray,  4  Camp.  144.  p.  30'.». 
Gardner  v.  Clark,  21  N.  Y.  399.  p.  314. 
Gardom,  Ex  parte,  15  Ves.  286.  p.  280. 
Garey  v.  Meagher,  38  Ala.  630.    pp.  216, 

242. 
Garland  v.  Salem  Bank,  9  Mass.  408.    p. 

4G8. 
Garland  v.  Spencer,  46  Me.  528.    p.  311. 
Giunett  V.  Willan,  6  Barn.  &  Aid.  53. 

p.  226. 
Garrison  v.  Memphis  Ins.  Co.,  19  How. 

312.     p.  43G. 
Garside  v.  Navigation  Co.,  4  Term  Rep 

581,  582.    pp.  135,  138,  139,  225. 
Garvey  v.  Colcock,   1    Nott  &   M.  231. 

p.  244. 
Gates  V.  Madison  County  Ins.  Co.,  6  N.  Y. 

469.     p.  263. 
Gateward's  Case,  6  Coke,  60  b.     p.  331. 
GatliflTe  v.  Bourne,  2    Moo.  &  R.    100. 

pp.  187,  143. 
Galling  v.  Newell,  9  Ind.  572.    p.  308. 


Gault  V.  Van  Zile,  37  Mich.  22.     pp.  112, 

388. 
Gavinzel    v.  Crump,  22   Wall.  30rt.     p. 

3«4. 
(Jeddes  V.  Wallace,  2  Bli.  270.     p.  283. 
General  Steam  Nav.  Co.  v,  Morrison,  13 

C.  B.  581.     p.  324. 
George  r.  Bartlclt.  22  N.  H.  AW.     p.  443. 
Gc(>rc;o  r.  Joy,  19  N.  H.  514.     p.  377. 
Gi'orgo  V.  Pritc'hard,  Kyan  «&  M.  417.     p. 

370. 
Georgia  Masonic,  etc.,  Ins.  Co.  v.  Whit- 
man, 52  Ga.  419.     p.  266. 
Gerald's  Case,  23  Uow.  St.  Tr.  1407.  note. 

p.  58. 
Gerard  v.  Cook,  2  Bos.  &  Pul.  N.  R.  109. 

p.  331. 
Gerhard  v.  Neese,  36  Texas,  635.     p.  330. 
German  Savings  Bank  v.  Jeflurson,   10 

liush,  326.     p.  240. 
Gerst  V.  Jones,  10  Cent.  L.  J.  151.     p. 309. 
Gethin  v.  Gethin,  2  Sw.  &  Tr.  560.    p. 

61. 
Gibbon  v.  Young,  2  J.  B.  Moo.  224.    p. 

409. 
Gibson  v.  Crick,  1  Hurl.  &  Colt.  142.    p. 

297. 
Gibson  v.   (-ulver.   17  Wend.  305.    pp. 

135,  140,  141,  143.  226,  232. 
Gibson  v.  Lupton,  9  Bing.  297.     p.  283. 
Gibson  v.  Small,  4  H.  L.  Cas.  897.    p. 

274. 
Gibson  v.  Smith,  4  H.   L.  Cas.  398.    p. 

370.  # 

Gilbart  v.  Dale,  5  Ad.  &  E.  543.     p.  215. 
(Jilbort  V.  Siige,  57  N.  Y.  639.     p.  82. 
Giles  V.  Edwards,  7  Term  Rep.  181.     p. 

311. 
Giles  V.  Jones,  11  Exch.  398.    p.  454. 
Giles  0.  Perkins.  <»  East.  12.     p.  210. 
Giles  V.  The  Cynthia,  1  Pet.  Adm.  207. 

p.  237. 
Gill  V.  Kuhn,  6  Serg.  &  R.  337.    pp.  288, 

284. 
Gillespie  v.  Thompson,  6  El.  &  Bl.  477. 
I      p.  222. 

'  Gillett  V.  Ellis,  11  111.  679.    p.  221. 
Gillett  V.  Mawman,  1  Taun.  138.     p.  278. 
Gillis  V.  Bailey,  1  Fost.  149.     p.  288. 
Gilman  v.  Riopelle,  18    Mich.   146.    p. 

400. 


.  V. 


f 


XXXVl 


TABLE    OF   CASES   CITED. 


(Jilman  v.  Vaughan,  44  Wis.  646.     p.  317. 
Gilmore  v.  Carmen,  1  8med.  &  M.  279. 

p.  43G. 
Gilpin  V.  Enderby,  6  Barn.  «fc  Aid.  954. 

p.  283. 
(Jindrat  v.  Mechanics'  Bank,  7  Ala.  325. 

p.  20t5. 
Girnrd  Bank  r.  Bank  ofPeiin  Township, 

39  Pa.  St.  92.     p.  205. 
Girard  Fire  Ins.  Co.  v.  Stephenson,  44 

Pa.  St.  298.     p.  259. 
Given  y.  Charron,  15  Md.  502.     pp.  53, 

64,  276. 
Glassell  v.  Thomas,  3  Leigh,  113.     p.  311. 
(Reason  v.  Walsh,  48  Me.  397.    pp.  41, 

276. 
(■.undaleMan.  Co.  v.  Protectioji  Ina.  Co., 

21  Conn.  19.    p.  56. 
Gloucester  Bank  o.  Salem  Bank,  17  Mass. 

33.     p.  211. 
Goblet  V.  Beechey,  Wigr.  on  Extr.  Ev. 

151.     pp.  355,  400. 
Goddard  u.  Merchants'  Bank,  4  N.  Y.  147. 

p.  211. 
Goddard  v.  Pratt,  16  Pick.  412.     p.  282. 
Godden  v.  Shipley,  7  B.  Mon.  579.     p. 

200. 
Goff  V.  Rehoboth,  2  Ciish.  475.     p.  3 1 7. 
Golden  v.  Manning,  3  Wils.  429.     p.  225. 
Golden  v.  Manning,  2  W.  Black.  916.     p. 

135. 
Golden  Fleece  Co.  v.  Cable  Co.,  2  Nev. 

312.    p.  390. 
(joldshede  i'.  Swan,  1  Exch.  158.     p.  364. 
Goldsmith  v.  Bryant,  26  Wis.  84.     p.  315. 
Goldsmith  v.  Manheim,  109  Mass.  187. 

p.  286. 
Goldsmith  v.  Sawyer,  46   Cal.  209.    p. 

112. 
•  oodnll  V.  New  England  Fire  Ins.  Co.,  25 

N.  H.  169.    p.  66. 
Goode  V.  Harrison,  5  Barn.  &  Aid.  147. 

p.  284. 
Goode  V,  McCartney,  10  Texas,  193.    p. 

288. 
Goodenow  v.  Tyler,  7  Mass.  86 ;  6  Am. 

Dec.  22.    pp.  180,  284,  290,  329. 
Goodfellow  V.  Meegan,  82  Mo.  280.     pp. 

81,  462. 
(ioodJand  v.  Blewith,  1  Camp.  477.    p. 

292. 


Goodman  v.  Clarke,  65  Me.  280.     p.  317. 
Goodnow  V.  Parsons,  36  Vt.  47.     p.  62. 
Goodrich  w.  Stevens,  5  Lans.  2;iO.     p.  375. 
Goodson  V.  Johnson,  35  Texas,  622.     p. 

214. 
Goodyear  v.  Ogden,  4  Hill,  104.     p.  105, 

387. 
Gordon  v.   Little,  11   Am.  Dec.  632:  8 

Serg.  &  K.  557.     pp.  96,  123,  167. 
Gordon  v.  Swan,  2  Camp.  429.    p.  30.> 
Gore  V.  McBrayer,  18  Cal.  582.     p.  8«.tO 
Gorrissen  v.  Perrin,  2  C.  B.  (n.  s.)  681. 

p.  373. 
Gosling  V.  Higgins,  1  Camp.  4)1.     p.  136. 
Goss  V.  Lord  Nugent,  5  Barn.  &  Adol. 

64.     pp.  3t)4,  365. 
Gould  V.  Boston  Duck  Co.,  13  Gray,  452. 

p.  332. 
Gould  V.  Hill,  2  Hill,  624.    pp.  136,  137, 

140. 
Gould  )'.  Oliver,  4  Bing.  N.  C.  184.     pp. 

29,  221. 
Goule  I'.  Hay  ward,  1  Cal.  345.     p.  283. 
Governor  v.  Withers,  6  Gratt.  24.     pp. 

112,  453. 
Governors  v.  Scarlett,  2  You.  &  J.  330. 

p.  4(i3. 
Gowan  u.  Jackson,  20  Johns.  1 76.     p.  282. 
Gracie  v.  Maryland  Ins.  Co.,  8  Craiich, 

76.     pp.  253,  404. 
Grafton  Bank  u.  Moore,  18  N.  H.  99.    p. 

282. 
Grafton's  Case,  1  Modern,  10.     p.  468. 
Graham  v.  Oyster,  2  Stark.  N.  P.  21.     p. 

290, 
Graham  v.  Williams,  16  Serg.  &  R.  257; 

16  Am.  Dec.  569.     p.  70. 
Grand  Trunk  U.  ^o.  v.  Richardson,  91  U. 

S.  454.     p.  328. 
Grant  v.  Ho<Vard  Ins.  Co.,  5  Hill,  10.     p. 

262. 
Grant  v.  Kearney,  12  Price,  773.     p.  105. 
Grant  v.  Lexington  Fire  Ins.  Co.,  5  Ind. 

23.    p.  45. 
Grant  w.  Maddox,  15  Mee.  &  W.  737.    pp. 

368,  394. 
Grantham  m.  Hawley,  Hob.  182.     p.  172. 
G-atitudine  (The),  3  Rob.  Adm.  240.     p. 

238. 
Graves  v.  Legg,  11  Exoh.  642;  2  Hurl.  A 

N.  210.    pp.  47,  284. 


i  li 


TABLE    OF   CASES    CITED. 


xxxvn 


1 
i 


(iriiy  ('.  Harper,   1  Story,  674.     pp.  364, 

378,  402. 
Gray  v.  Murray,  3  Johns.  Ch.  167.    pp. 

278,  289. 
Griiy  V.  Swan,  1  Har.  &  J.  142.     p.  151. 
lireat  Northern  K.  Co.  v.  Eastern  Coun- 
ties R.  Co.,  6  El.  &  Bl.  327.     p.  288. 
Great  Western  R.  Co.  y.  Cunliffe,  L.  R. 

9  Ch.  525.     p.  296. 
Greaves  i".  Ashlin,  3  Camp.  426.     p.  26. 
Greaves  v.  Legg,  11  Exch.  644;  2  Hurl.  & 

N.210.     pp.  111,288. 
Greeley  v.  Wyeth,  10  N.  U.  16.    p.  280. 
Greely  v.  Bartlett,   1  Greenl.  172.    pp. 

284,  290. 
Green  v.  Be->sley,  2  Bing.  N.  C.  108,     p. 

283. 
Green  «.  Dishrow,  7  Lans.  381 ;  56  N.  Y. 

33G.    p.  286. 
(ireen  i\  Farmer,  4  Burr.  2221.     p.  99. 
Green  c.  Hill,  4  Texas,  4(5').     p.  97. 
Green  v.  Kopkc,  18  C.  B.  549.     p.  301. 
Green  v.   Milwaukee,    etc.,    R.  Co.,    38 
Iowa,  100;  40  Iowa,  410.     pp.  216,  217. 
Green  v.  Moffett,  22  Mo.  529.     p.  454. 
Greene  w.  Day,  34  Iowa,  328.     p.  864. 
Greene  v.  Tyler,  39  Pa.  St.  361.     p.  468. 
Greenfield  Bank  v.  Crafts,  2  Allen,  209. 

p.  286. 
Greenwood  v.  Burns,  50  Mo.  52.     p.  292. 
Gregory  v.  Christie,  3  Doug.  419.     pp. 

254,  257. 
Gregory  v.  Wendell,  39  Mich.  337.    p.  96. 
Grider  v.  Clopton,  27  Ark.  244.     p.  365. 
Griffin  v.  Blandford,  Cowp.  62.     p.  112. 
Griffin  v.  Rico,  1  Hilt.  184.     p.  103. 
Griffith  V.  Bullum,  22  Vt.  181.     p.  283. 
Griffith  V.  J.ee,  1  Car.  &  P.  110.    p.  136. 
Griffiths  V.  Puleston,  13  Jtfee.  &  W.  358. 

p.  268. 
Griggs  V.  Austin.  3  Pick.  20.     p.  237. 
(irimstead  v.  Marlowe,  4  Term  Rep.  717. 

p.  331. 
Grinnan  v.  Walker,  9  Iowa,  426.    p.  200. 
Grinnell  v.  Western  Union  Tel.  Co.,  113 

Mass.     !9.     p.  438. 
(brisling  v.  Wood,  Cro.  Eliz.  85.     p.  420. 
Grissell  u.  Bristowe,  L.  K.  4  C.  B.  36.    p. 

288. 
Qnoaen  v.  Robinson,  3  Bing.  N.  C.  11. 
p.  270. 


Groat  V.  Gile,  29  Iowa,  431.  p.  4')1. 
Gross  0.  Criss,  3  Gratt.  262.  p.  452. 
Grosvenor  v.  Railroad  Co.,  39  N.  Y.  34. 

p.  215. 
Grymes  r.  Sanders,  93  U.  S.  5-5.     p.  311. 
(iuichard  v.  Morgan,  4  J.  B.   Moo.  3ti. 

p.  290. 
Guild  V.  Baldridge,  2  Swan,  295.     p.  4"i8. 
Gulliver  v.  Adams  E.vpress  Co.,  38  111. 

503.     p.  233. 
Gumbel  v.  Abrams,  20  La.  An.  568.     p. 

284. 
Gunther  o.  Atwell,  19  ^Id.  157.     pp.  308, 

309. 
Gurney  v.  Atlantic,  etc.,  R.  Co.,  58  N.  Y. 

358.     p.  300. 
Gurney  v.  Behrend,  3  El.  &  Bl.  634.     p. 

40. 
Gurney  v.  Howe,  9  Gray,  404.     p.  316. 
Guy  0.  Oakley,  13  Johns." 332.     p.  202. 

Hackney  v.  Jones,  3  Humph.   612.     p. 

292. 
Haddock's  Case,  T.  Raym.  436.     p.  464. 
Hadley  v.  Clinton,  etc.,  R.  Co.,  13  Ohio 

St.  602.     p.  306. 
Hagan  v.  Domestic  Sewing-Machine  Co., 

9  Hun,  73.     p.  397. 
Hagerstown  Turnpike  Co.  v.  Creeger,  3 

Har.  &  J.  122.     p.  463. 
Hagerty  u.  Scott,  10  Texas,  525.     p.  100. 
Hagey  v.  Hil»,  75  Pa.  St.  108.    p.  3(;4. 
Haggerty  in   Palmer,  6  Johns.   Ch.  437. 

pp.  314,  31.5. 
Hale  0.  Gibbs,  43  Iowa,  380.    p.  37. 
Hall  0.  Bunson,  7  Car.  &  P.  711.     p.  100. 
Hall  I).  Betty,  4  Man.  &  G.  410.     p.  370. 
Hall  ('.  Condor,  2  C.  B.  (n.  8.)  22.     p.  306. 
Hall  V.  Glidden,  39  Me.  445.     p.  84. 
Hall  u.  Insurance  Co.  of  North  America, 

58N.Y'.  202.     p.  259. 
Hall  V.  Janson,  4  El.  &  Bl.  500.     p.  439. 
Hall  0.  Laiining,  01  U.  S.  1»;0.     p.  284. 
Hall  I'.  NotLingtiam,  24  Week.  Jtop.  58. 

p.  331. 
Hall  0.  Plassan,  19  La.  An.  11.     p.  308. 
Hall  V.  Reed,  2  Barb.  Ch.  500.     p.  463. 
Hall  0.  Storrs,  7  Wis.  263.     pp.  30,  299. 
Hall  0.  United  States  Ins.  Co.,  6  Gill,  484. 

p.  248. 
Hall  V.  Young,  37  N.  H.  131.     p.  330. 


•I:; 


11 


If" 


'     r 


XXXViU 


TABLK    OF    CASKS    CITED. 


Hnlli<l:iy  c.  Harl,  oO  N.  Y.  474.     p.  W4. 
HfiUi.lay  V.  McUousnil.  20  VVeiul.  81.     p. 

282. 
Hallifiix  V.  Chambers,  4  Mee.  &  VV.  «")2. 

p.  2ii7. 
Hiilliiij^s  V.  Coimard.  Cro.  Eli",.  517.     p. 

270. 
Halls  V.  Howell,  Harp.  427.     p.  206. 
Halsey  v.  Brown,  3  Day,  34G.     pp.  12), 

143,  294. 
Halstead  v,  Schraolzel,  17  Johns.  80.     p. 

283. 
Halwerson  v.  Cole,  1  Spears,  321.     p.  98. 
Hamilton  v,  Lycoming  Ins.  Co.,  5  Pa.  St. 

.344.    p.  244. 
Hamilton  v.  Lycoming  Ins.  Co.,  17  Pa. 

St.  339.    p.  82. 
Hamilton  v.   Nickerson,   13  Allen,  351. 

p.  ino. 

Hamilton  v.  Royse,  2  Sch.  &  Lef.  330. 

p.  288. 
Hi'-mmond  v.  Varian,  64  N.  Y.  398.     p. 

286. 
Hammond  v,  Wadhams,  5  Mass.  354.    p. 

88. 
Hammond  v.  Warfield,  2  Har.  &  J.  151. 

p.  102. 
Hancox  v.  Fishing  Ins.  Co.,  2  Sumn.  132. 

p.  251. 
Hanley  v.  Life  Assn.,  4  Mo.  App.  253.    p. 

260. 
H.inmer  v.  Chance,  11  Jur.  (n.  s.)  397; 

13  Week.  Hep.  356.     pp.  17,  27,  331. 
Hanson  v.  Busse,  45   111.  498.     pp.  308, 

309. 
Harbert  v.  Neil,  49  Texas,  143.    p.  290. 
Harding  v.  Metz,  1   Tenn.  Ch.  610.     p. 

314. 
Harding  v.  The  Maverick,  5  Law  Rep. 

106.    pp.  71,  324. 
Hare  v.  Barstow,  8  Jur.  928.     p.  439. 
Hare  i\  llotity,  10  C.  B.  (k.  8.)  66.     pp. 

96,  209. 
Hargos  v.  Stone,  5  N.  Y.  73.     pp.  308, 

809. 
Harland  v.  Cooke,  Freem.  320.     p.  16. 
Harmon  v.  Salmon  Falls  Man.  Co.,  36 

Me.  447.    p.  64. 
Harnor  v.  Groves,  15  C.  B.  667.     p.  364. 
Harper  v.  Albany  Ini.  Co.,  17  N.  Y.  194. 

|)p.  158,  268,  261. 


Flarpor  v.  Calhoun,  7  How.  (Mi«s.)  203. 

p.  39. 
Harpor  v.  Charlesworth,  4  Barn.  &  Cress. 

575.     p.  244. 
Harper    v.  City   Ins.  Co.,  I    Bosw.  620. 

pp.  148,  157,  258,  2til. 
Harper   v.  Pound,   10  Ind.  32.     pp.  22, 

442. 
Harrington  v.  McShaue,  2  Watts,  443. 

p.  215. 
Harris  v.  Carson,  7  Leigh,  632.    pp.  28, 

269. 
Harris  v.  Dub,  57  Ga.  77.     p.  336. 
Harris  v.  Moody,  30  N.  Y.  206.    pp.  221, 

222. 
Harris  v.  Nicholas,  6  Munf.  483.    p.  276. 
Harris  v.  Panama  R.  Co.,  68  N.  Y.  600. 

p.  305. 
Harris  v.  Rathbun,  2  Kcyes,  312.     p.  375. 
Harris  v.  Tumbridgo,  8  Abb.  N.  C.  291. 

pp.  49,  50. 
Harrison  v.  Godmaii,  1  Burr.  16.     p.  463. 
Harrison   v.  Handley,   1    Bibb,  443.     p. 

317. 
Harrison  v.  Sharp,  Bunb.  174.    p.  173. 
Hart  V.  Hammett,  18  Vt.  127.    p.  374. 
Hart  I).  Marks,  4  Bradf.  163.     p.  399. 
Hart  V.  Windsor,  12  Mee.  &  W.  68.     p. 

370. 
Hart  V.  Young,  1  Lans.  417.     p.  330. 
Hartford  Bank  v.  Stedman,  3  Conn.  489. 

pp.  206,  200. 
Hartford  Protection  Ins.  Co.  v.  Harnier, 

2  Ohio  St.  452.     p.  66. 
Hartje  v.  Collins,  46  Pa.  St.  268.    p.  293. 
Hartop  V.  Hoare,  1  Wils.  8.     p.  17. 
Hartshorne   v.  Johnston,  2   Halst.   108. 

p.  238. 
Hartstone   v.  Union  Ins.  Co.,  5  Bosw. 

636;  36  N.  Y.  172.     p.  261. 
Hartwell  v.  Camman,  10  N.  J.  Eq.  128. 

p.  368. 
Harvey  v.  Cady,  3  Mich.  431.     p.  442. 
Harvey  v.  Ryan,  42  Cal.  627.     p.  390. 
Haskins  r.  Warren,  116  Mass.  514.     pp. 

69,  99,  100.  314. 
Haslam  v.  Adams  Express  Co.,  6  Bosw. 

235.    p.  238. 
Hasleham  v.  Young,  5  Q.  B.  883.    p.  280. 
Haatie  v.  De  Peyster,  8  Gaines,  190.     [•. 

265. 


TABLE    OF    CASES    CITED. 


XXXIX 


^ 


Hastings  v.  Lovering,  2   Pick.   219.     p. 

oOM. 
Hastings  v.  Pepper,  11  Pick.  41.     p.  2ii9. 
Hatch  V.  Hatch,  2  Hayw.  32.     p.  354. 
Hatchwell   v.  Cooke,   6   Taun.   577.     p. 

136. 
Haiixhurst  r.  Hovey,  26  Vt.  544.     p.  317. 
Haven  v.  Wentworth,  2  N.  H.  93.     p.  286. 
Hawes  r.  Lawrence,  3  Sandf.  193 ;  4  N. 

Y.  345.     p.  99. 
Hawes  v.  Tillinghast,  1   Gray,  289.    p. 

28o. 
Hawken  c.  Boun\e,  8  Mee.  &  W.  703.    p. 

280. 
Hawkins  r.  Kemp,  3  East,  410.     p.  288. 
Hawkins  v.  Pemberton,  6  Robt.  42.     p. 

306. 
Hawkins  c.  Rutt,  Peako  N.  P.  187.     p. 

316. 
Hawkins  v.  WftUis,  2  Wilies,  173.     p.  112. 
Ilawley  v.  James,  5  Paige,  323.     p.  288. 
Hawtayne  v.  Bourne,  7  Mee.  &  W.  596. 

p.  281. 
Hay  V.  Leigh,  48  Barb,  -393.     p.  378. 
Havden   v.  Middlesex  Turnpike  Co.,  10 

Mass.  S79;  6  Am.  Dec.  143.     p.  146. 
Hayes  v.  Moyiiihan,  60  111.  409.     p.  278. 
Haynes  v.  Berks.  3  Bos.  »fc  Pul.  599.     p. 

209. 
Hays  V.  Waldron,  44  N.  H.  584.     p.  333. 
Hayton  ».  Irwin,  28  Week.  Rep.  138.    pp. 

229.  438. 
Hayward  v.  Cunnington,   1  Lev.  231 ;  1 

Sid.  364.     p.  32. 
Hayward  v.  French,  12   Gray,  453.     p. 

280. 
Hayward  v.  Middleton,  3   McCord,  121. 

pp.  193,  237. 
Hayward   ».   Pilgrim   Society,  21  Pick. 

277.    p.  143. 
Haywood  v.  Long,  5  Ired.  L.  438.     p.  471. 
Haywood  r.  Pickering,  L.  R.  9  Q.  B.  428. 

p.  206. 
Hazard  v.  Hazard,  1  Story,  371.     p.  283. 
Hazard  n.  New  Ennfland  Marine  Ins.  Co., 

8  Pet.  557.     p.  261. 
Huad  r.  Providence  Ins.  Co.,  2  Cranch, 

127.     pp.  146,  245. 
Heald  v.  Cooper,  8  Me.  32.     p.  377. 
Hoarne  v.  Marine  Ins.  Co.,  20  Wall.  488. 
p.  439. 


Heart  v.  State  Bank,  2  Dov.  Eq.  111.     p. 

24ti. 
Heath  r.  Kicker,  2  Me.  72.     p.  332. 
Heaton  v.  Ashdowii,   B.  R.,  T.,  18  Geo. 

III.,  c.  7.     p.  422. 
Hedge's  Appeal,  63  Pa.  St.  273.     p.  283. 
Heiliier  c.  linbrie,  6  Serg.  &  R.  401.     p. 

364. 
Heisch  v.  Carrington,  5  Car.  &  P.  471.    p. 

292. 
Helme  v.  Philadelphia  Life  Ins.  Co.,  61 

Pa.  St.  107.     p.  265. 
Helps  V.  Clayton,  17  C.  B.  (n.  s.)  553.     p. 

270. 
Henderson  t>.  Planters'  Bank,  11  Rich.  L. 

44.     p.  468. 
Hendrik  Hudson  (The),  7  Law  Rep.  (n.  8.) 

93.     p.  286. 
Hendricks  v.  Robinson,  56  Miss.  694.    p. 

318. 
Henkel  v.  Welsh,  41  Mich.  664.     p.  313. 
Henry  v.  Martin,  1  W.  N.  C.  277.     p.  83. 
Henry  v.  Marvin,  3  E.  D.  Smith,  71.     p. 

292. 
Henry  v.  Risk,  1  Dull.  265.     pp.  130,  317. 
Henshaw  v.  Clark,  2  Root,  104.     p.  75. 
Hetison  v.  Cooper,  3  Scott  N.  R.  48.     p. 

364. 
Herbert  v.  Reid.  16  Ves.  481.     p.  355. 
Herst  u.  Comi  ■  u.  1  Sweeny,  590.     p.  378. 
Hesketh  v.  Blauchard,  4  East,   144.     p. 

283. 
Hesketh  V.  Braddock,  3  Burr.  1868.     p. 

463. 
Hewett  V.  Buck,  17  Me.  147.     p.  75. 
Hibbard  v.  Mills,  46  Vt.  243.     p.  366. 
Hibbert  v.  Sheo,  1  Camp.  113.     p.,  308. 
Hibler  v.  McCartney,  31   Ala.  501.     pp. 

329,  436. 
Hickox   V.  Naugatuck  R.  Co.,  81  Conn. 

281.     pp.  216,  220. 
Hicks  V.  Bell,  3  Cal.  219.     p.  390. 
Hicks  V.  Cram,  17  Vt.  449.     p.  282. 
Hicks  V.  Shield.  7  El.  &  Bl.  633.     p.  237. 
llider  V.  Dowell,  1  Taun.  383.     p.  143. 
Iliggins  V.  Moore,  34  N,  Y.  425  ;  6  Bosw. 

3U.     pp.  45,292. 
Higgins  I".  Senior,  8  Mee.  &  W.834.     pp. 

92.  344. 
HigLjins  r.  riiited  States  Mail  Steamship 
Co.,  3  Blatchf.  282.     p.  408. 


1^ 


m 


xl 


TABLE   OF    CASES    CITED. 


Hij,'lit  i\  Bncon,  12fi  Mftss.  10.     p.  112. 
i liil  V.  Kvans,  31  L.  J,  (Ch.)  457.     p.  368. 
Hill  V.  Hiberiiia  Ins.  Co.,  10  Hiin,  26. 

pp.  55,  .J08. 
Hill  V.  Manchester  Water- AVovks  Co.,  3 

I?arri.&  Cress.  806;  2  Nev.  &  M.  573. 

p.  245. 
Hill  V.  Peyton,  21  Gratt.  386.     p.  364. 
Hill  r.  Portland,  etc.,  R.  Co.,  55  Me.  438. 

p.  329. 
Hill  u.  Ward,  7  111.  285.     p.  333. 
Hills  «.  Iloitt,  18  N.  II.  603.     p.  330. 
Hilton  V.  Granville,  Dav.  &  M.  614;  5  Q. 

B.  701.     p.  63. 
Hinckley   v.  Barnstable,  109  Mass.  126. 

p.  329. 
Hine  o.  Pomeroy,  39  Vt.  211.     pp.  79,  80. 
Hinneinann  u.  Kosenback,  39  N.   V.  98. 

p.  364. 
Hinsdale  i'.  Bank  of  Orange,  6  Wend.  378. 

p.  212. 
Hinton  o.  Coleman,  45  Wis.  16").     p.  33. 
Hinton  o.  Locke,  5  Hill,  434.    pp.  45,  435. 
Hiseocks  v.  Hiscocks,  6  Mee.  &  W.  363. 

p.  398. 
Hissrick  v.  MePher?  .i.  20  Mo.  310.    p. 

82. 
Hitt  «.  Allen,  13  111.  592.    p.  317. 
Hix  V.  Gardiner,  1  Bulst.  195.     pp.  63,  66. 
Hoadley  y.  McLaine,   10  Bing.  482.    p. 

315. 
Hoare  i\  Dawes,  1  Doug.  371.     p.  284. 
Hockin  r.  Cooke,  4  Term  Rep.  314.     pp. 

337,  454. 
Hodgson  y.  Davies,  2  Camp.  530.     pp. 

285,  349. 
Hoe  r.  Sanborn,  21  N.  Y.  552.    p.  309. 
Iloirnnin  n.  Noble,  6  ^letc.  68.     p.  238. 
Holbrook  y.  Allen,  4  Fla.  87.    p.  468, 
Holbrook  v.  Burt,  22  Pick.  546.     p.  311. 
Holcroft  ('.  Barber,  1  Car.  &  Kir.  4.     pp. 

175,  277. 
Ilolderness  v.  Collinson,  7  Barn.  &  Cress. 

202.    pp.  99,  241. 
Holden  v.  Dakin,  4  Johns.  421.    p.  306. 
Holding  V.  Elliott,  6  Hurl.  &  N.  117.    p. 

381. 
Holding  y.  Plgott,  7  Bing.  465.    pp.  268, 

275,  862. 
Holford  t>.  Adams,  2  Duer,  471.    pp.  40, 

286. 


Hollingworth  v.  Broderick,  7  Ad.  &  B. 

44.     p.  257. 
HoUis  V.  Wells,  3  Pa.  L.  J.  169.     p.  60. 
Hollister  v.  Nowlen,  19  Wend.  239.     pp. 

136,  137,  140,  221. 

Holmes  v.  Gale,  1  Ala.  617.  p.  305. 
Holmes  v.  Johnson,  42  Pa.  St.  159.  p.  60. 
Holmes  v.  Pettingill,  1  Ilun,  316.  p.  435. 
Holmes  v.  Samuel.  15  111.  412.  p.  442. 
Holmes  r.  Seely,  17  Wend.  75.  p.  352. 
Home  Ins.  Co.   v.  Favorite,  46  111.  263. 

p.  258. 
Homer   r.  Doir,  10  Mass.  26.     pp.  192, 

256,  465. 
Hone  V.  Mutual  Safety  Ins.  Co.,  1  Sandf. 

137.  pp.  21,  249,  265,  466,  478,  484. 
Honeywood  v.  Honeywood,  L.  K.  18  Eq. 

306.    p.  267. 
Hood  V.  Lynn,  1  Allen,  103.     pp.  41,  464. 
Hooper  r.  Chicago,  etc.,  R.  Co.,  27  Wis. 

81.     pp.  235,  AOi. 
Hope  V.  Cust,  1  East,  53.     p.  280. 
Hopkins  v.  Grimes,  14  Iowa,  73.     p.  400, 
Hopkins  v.  Mehatfy,  11  Serg.  &  R.  129 

p.  302. 
Hopkins  v.  Sanford,  41    Mich.  243.     p 

375. 
Hopkins  v.  Tanqueray,  16  C.  B.  130.     p 

306. 
Hopkinson  y.  Rolt,  9  H.  L.  Cas.  514.     p, 

473. 

Horn  V.  Brooks,  61  Pa.  St.  407.    p.  365, 
Horn  V.  Ivy,  1  Vent.  47.     p.  243. 
Horner  v.  Watson,  79  Pa.  St.  242.     p.  77 
Horton   w.  Beckman,  6  Term  Rep.  760, 

pp.  64,  331. 
Horton  v.  Locke,  5  Hill,  437.     p.  393. 
Hosea  v.  McCrary,  12  Ala.  349,     p.  215. 
Hosley  v.  Black,  28  N.  Y.  438.     p.  397. 
Hotchkiss    V.  Artisans'  Bank,  42    Barb. 

617.    pp.  40,  233,  207. 
Hotchkiss  y.  Germania  Ins.  Co.,  5  Hun, 

90.     p.  262. 
Hotson  V.  Browne,  9  C.  B.  (n.  s.)  442.     p. 

394. 
Houghton  0.  Gilbart,  7  Car.  &  P.  701.     p. 

102. 
Houghton  V.  ManufacturerB'   Ins.  Co.,  8 

Mete.  114.    p.  406. 
Houghton  V.  Matthews,  3  Bos.  &  Pul.  489. 

p.  290. 


TABLK    OF    CASKS    CITKD. 


xli 


P- 

P- 

306. 


216. 
8fl7. 
nrb. 


■1 


Housatoiiic,  eti.,  Bank  v.  Martin,  1  MeU. 

308.    p.  143. 
Howard  u.  American  Peace  Society,  40 

Me.  298.     p.  308. 
Howard  v.  Bailie,  2  H.   Black.  G18.    p. 

280. 
Howard  n.  Great  Western  Ins.  Co.,  109 

MaBS.  384.     p.  45. 
Howard  v.  Ives,  1  Hill,  263.     p.  209. 
Howard  r.  Sheward,  L.  R.  9  C.  P.  148. 

p.  287. 
Howard's  Case,  L.  R.  1  Ch.  5G1.     p,  289. 
ilowe  r.  Hardy,  106  Mass.  329.     p.  316. 
Howell  r.  Harvey,  5  Ark.  270.     p.  283. 
Howell  V.  Knickerbocker  Ins.  Co.,  44  N. 

Y.  270.    p.  266. 
Howell  V.  Schenck,  24  N.  J.  L.  89.     p. 

269. 
Howes  V.  Ball,  7  Barn.  &  Cress.  481.     p. 

288. 
Hudson  V.  Clementson,  18  C.  B.  213.    p. 

409. 
Hudson  i;.  Johnson,  1  Wash.  10.     p.  202. 
Hughes  V.  Gordon,  1  Bli.  287.     p.  273. 
Hughes  V.  Humphreys,  3  El.  &  Bl.  054. 

p.  454. 
Hughes  P.  Stanley,  45  Iowa,  622.     p.  387. 
Hughes  ('.  Winona,  etc.,  R.  Co.  (Sup.  Ct. 

Minn.),     p.  325. 
Hulbert  v.  Carver,  37  Barb.  62.     p.  386. 
Humfrey  v.  Dale,  7  El.  &  Bl.  266 ;  26  L. 
J.  (Q.  B.)  137 ;  s.  c.  in  Exchequer  Cham- 
ber, El.  Bl.  &  El.  1004 ;  27  L.  J.  (Q.  B.) 
390.     pp.  25,  92,  95,  302,  342,  366,  382, 
435. 
Huniphreysville  Copper  Co.  w.  Vermont 
Copper-Mining  Co.,  33  Vt.  92.     p.  377. 
Hunt  V.  Carlisle,  1  Gray,  267.    p.  277. 
Hunt  V.  Haskell,  24  Me.  339.     p.  238. 
Hunt  V.  Hort,  3  Bro.  C.  C.  311.    p.  102. 
Hunt  V.  Mickey,  12  Melc.  849.    p.  277- 
Hunt  V.  Otis  Co.,  4  Mete.  464.     p.  278. 
Hunt  V.  Silk,  5  East,  449.     p.  311. 
Hunter  v.  Jones,  3  Brows.  370.     p.  269. 
Hursh  V.  North,  40  Pa.  St.  241.     p.  306. 
Hussey  v.  Jacob,  Ld.  Rayra.  88.     p.  20. 
Hussey    v.  Thornton,    4   Mass.    405.     p. 

3H.' 
Huston  V.  Clark.  50  N.  H.  482.     p.  330. 
i.'uston  V.  McArthur,  7  Ohio,  64.    pp.85, 
75. 


Huston  i\  I'eters,  1   Mete.  (Ky.)558.     p. 

226. 
Huston  V.  Roots,  30  Ind.  461.     p.  101. 
Hutchins  v.  Ladd,  16  Mich.  493.    p.  300. 
Hutchinson  w.  Bowker,  5  Mee.  &  W.  Ooo. 

p.  105. 
Hutchinson  «.  Tatham.  L.  R.  8  C.  P.  482. 

pp.  302.  362,  382. 
Hutton  r.   Warren,   1  Meo.  &  W.  475. 

pp.  21,  273. 
Hyde  i;.  Trent,  etc.,  Nav.  Co.,  5  Term 

Rep.  380.     pp.  126,  135,  136,  137,  143, 

215,  224,  226. 

Iddings  i).  Nagle,  2  Watts  &  S.  22.     p. 

269. 
Illinois  Central  R.  Co.  v.  Morrison,  19  111. 

136.     p.  220. 
Illinois  Central  R.  Co.  i'.  Smyser,  38  111. 

354.     pp.  216,  219.  242,  243. 
Illinois,  etc.,  Ins.  Co.  v.  Fox,  53  111.  151. 

p.  468. 
Illinois  Masons'  Benevolent  Soc.  v.  Bald- 
win, 86  111.  479.     p.  33. 
Illinois  Mutual  Ins.   Co.  v.  O'Neile,   13 

111.  89.     p.  56. 
Indianapolis,  etc.,  R.  Co.  v.  Herndon.  81 

111.  143.     p.  238. 
Indianapolis,  etc.,  R.  Co.  v.  Murray,  72 

111.  128.     p.  235. 
Inglebright  v.  Hammond,  19  Ohio  St  387. 

p.  466. 
Ingram  v.  Ingram,  2  A  tk.  88.     p.  288. 
Inslee  c.  Jones,  Bright.  76.     p.  203. 
Inskecp  v.  Inskeep,  6  Iowa,  204.     p.  61. 
Insurance  Co.  v.  Troop,  22    Mich.  146. 

p.  364. 
Insurance  Co.  y.  Weide,  11    Wall.  488. 

pp.  100,  264. 
Insurance  Co.  v.  Wright,  1  Wall.  456. 

p.  439. 
Ireland  v.  Kip,  10  Johns.  400;  11  Johns. 

231.     p.  206. 
Ireland  v.  Livingston,  L.  R.  5  Q.  B.  516; 
L.  R.  2  Q.  B.  99;  L.  R.  6  R  L.  Cas. 
395.     p.  299. 
Ireland  v.  Thomson,  4  C.  B.  149.    p.  292. 
Irish  V.  Doiui.  30  Wis.  .V;2.     p.  364. 
Irving  I'.  Thomas,  is  M,..  418.     p.  306. 
Irwin  u.  Clark,  in  Mich.  10.     p.  387. 
Isabella  (The),  8  Ben.  139.     pp.  436.  459. 


f; 


11 


i^i| 


xlil 


TABLE   OP    CASKS    CITKD. 


Ishiim  ('.  Fox,  7  Ohio  St  317.     pp.  33, 
206. 

Jackson  v.  ^tna  Ins.  Co.,  ^(^   B.  Mon. 

242.    p.  261. 
Jackson  v.  Beling,  22  La.  An.  377.    p. 

473. 
Jackson  v.  Gumaer,  2  Cow.  537.     p,  462. 
Jackson  v.  Henderson,  3  Leigh,  196.     p. 

112. 
Jackson  v.  Isaacs,  8  Hurl.  &  N.  405.    p. 

237. 
Jackson  v.  Lervey,  5  Cow.  402.     p.  60. 
•Iiickson  1).  Parkhurst,  4  Wend.  374.     p. 

352. 
•fackson  ).  Union  Bank,  6  Har.  &  J.  416. 

p.  206. 
.rack,.or>  »  ,' .  nil,  7  Serg.  &  R.  480. 

p.  306. 
.lacobs  V.  Messier,  113  Mass.  161.  p.  330. 
•fiicobs  ».  '^horey,  48  N.  H.  100.  p.  70. 
Jacques  0.  Eds'  40  >  ;.  p.  295. 
.lames  r.  McCredie,  1  o(iy,  -I'.^T.  p.  200. 
Jiimes  V.  Hicliinond,  5  Ohio,  338.  p.  82. 
.Fames  v.  Wharton,  3  McLean,  492.    p. 

82. 
Jiimeson  v.  Switon,  2  Taun.  225.     p.  96. 
.lamison  v.  Ludlow,  3  La.  An.  492.    p. 

365. 
Jefferson  Ins.  Co.  v.  Cotheal,  7   Wend. 

72.    p.  262. 
.Inffrey  v.  Keokuk,  etc.,  R.  Co.  (Sup.  Ct. 

[owa,  June,  1879).     p.  109. 
.lelison  v.  Lee,  3  Woodb.  &  M.  368.     p. 

71. 
.Jenkins  v.  Cooper,  50  Ala.  419.     p.  364. 
Jenkins   v.  Harvey,  1  Cromp.  M.  &   R. 

877.     p.  26. 
Jenkins  v.  Simpson,  2  Shep.  364.     p.  311. 
Jennings  v.  Broughton,  5  De  G.  M.  &  G. 

539.     p.  311. 
Jennings  v.  Chenango  County  Ins.  Co.,  2 

Denio,  78.     p.  151. 
Jenny  Lind  Co.  v.  Bower,  11  Cal.  194. 

p.  388. 
Jenys  v.  Fawlor,  2  Stra.  946.     p.  211. 
Jessopp  t'.  Lutwyche,   10  Exch.  614.     p. 

288. 
Jewell  V.  Center.  26  Ala.  498.    p.  98. 
Jewell  V.  Railway  Co.,  55  N.  H.  84.    pp. 
26,  322. 


Jewett,  In  re,  15  Nat.  Bank.  Reg.  126.     p. 

284. 
Johnson    i'.  Bank  of  North   America,  6 

Robt.  nsi;  45  N.  Y.  67.     p.  324. 
Johnson    v.  Concord    R.  Co.,  46    N.  H. 

213.     p.  50. 
Johnson  v.  Cunningham,  1  Ala.  249.    p. 

289. 
Johnson  v.  De  Peyster,  50  N.  Y.  466.    p. 

278. 
Johnson    v.  GilfiUan,  8   Minn.  395.    p. 

473. 
Johnson  v.  Jones,  4  Barb.  369.     p.  286. 
Johnson  v.  Kershaw,  L.  R.  2  Exch.  82. 

p.  299. 
.lohnson    v.  Lightsey,  34   Ala.   169.     p. 

322. 
.Fuhnson  v.  North- Western,  etc.,  Ins.  Co., 

39  Wis.  87.     p.  401. 
Johnson  v.  Pollock.  58  111.  181,    p.  .364. 
Johnson  v.  Stoddard,  100  Mass.  306.     pp. 

37,  315. 
.Johnston  v.  Cope,  3   Har.  &  J.  89.     p. 

300. 
.Johnston  v.  Usborne,  11  Ad.  &  E.  549. 

p.  290. 
Jolly  r.  Baltimore  Equitable  Soc,  1  Har. 

&  G.  295.    p.  262. 
.Jones  V.  Allen,  5  Ired.  L.  273.     p.  471. 
Jones  y.  Bowden,  4  Taun.  848.     pp.  186, 

30f),  307. 
Jones  V.  Bradner.  10  Barb.  193.    p.  .369. 
Jones  V.  Bright,  5  Bing.  533.     p.  309. 
Jones  V.  Clarke,  2  Hurl.  &  N.  725.    p. 

375. 
.looes  V.  Fales,  4  Mass.  252.    pp.  121,  206, 

206. 
Jones  V.  Firemen's  Fund  Ins.  Co.,  51  N. 

Y.  318.     p.  202. 
.Jones  V.  Hoey,   128  Mass.  586.     pp.  98, 

304. 
Jones  V.  Jones,  21  N.  H.  219.    p.  84. 
Jones  V.  Just,  L.  R.  3  Q.  B.  197.     p.  309. 
Jones  V.  Littlodale,  6  Ad.  &  E.  486.    p. 

302. 
Jones  V.  Long,  3  Watts,  325.     p.  84. 
Jones  t>.  Manufacturers'  Ins.  Co.,  8  Cush. 

82.    p.  262. 
Jones  V.  McLean,  18  Ark.  468.    p.  458. 
Jones  V.  Peppercorne,  28  L.  J.  (Cb.)  158. 
u.  96. 


TABLE    OF    CASKS    CITKD. 


xliii 


206. 


51  N. 


98, 


309. 


yush. 


^58. 
158. 


Jones  r.  Pitcher,  3  Stew.  &  P.  136.     pp. 

.324,  430. 
Jones  V.  Smith,  2  Bulst.  36.     p.  457. 
Jones  V.  Trustees,  46  Ala.  626.     p.  245. 
Jonos  V.  Wagner,  66  Pa.  St.  430.     p.  77. 
.Tones  v.  Warner,  11  Conn.  40.     p.  287. 
.lones  V.  Waters,  5  Tyrw.  361.    p.  11. 
Jopling  V.  Dooley,  1  Yerg.  28t>.     p.  311. 
Jordan  v.  Meredith,  3  Yeates,  318.    pp. 

74,  392. 
.lournu   V.  Bourdieu,  Park  on  Ins.  245. 

p.  401. 
Juggomohun  Ghore  v.  Manickchurvd,  7 

Moo.  Ind.  App.  263.    p.  30. 

Kane  v.  Colonial  Ins.  Co.,  2  Johns.  264. 

p.  254. 
Kane  v.  Snaith,  12  Johns.  156.    p.  317. 
Karr  v.  Stivers,  34  Iowa,  123.    p.  82. 
Kauffman  v.  Copous,  16  Wend.  478.    p. 

200. 
Kay  V.  Wheeler,  36  L.  J.  (C.  P.)  180;  L. 

R.  2  C.  P.  302.     p.  436. 
Kearney  v.  King,  2  Barn.  &  Aid.  301.     p. 

270. 
Keckeley  v.  Cummins,  Harp.  268.    p.  278. 
Keeler  v.  Field,  1  Paige,  312.    p.  316. 
Kell  0.  Charmer,  22  Beav.  195.     p.  400. 
Kelleuberger  v.  Foresman,  13  Ind.  476. 

p.  270. 
Kelley  v.  Todd,  1  W.  Va.  197.    p.  269. 
Kellogg  y.Griswold,  12  Vt.  291.    p.  283. 
Kellogg  V.  Schnawke,  66  Mo.  137.     p.  214. 
Kelly  V.  Smith,  1  Blatchf.  290.    p.  290. 
Kelty  V.  Second  National  Bank,  52  Barb. 

328.    p.  324. 
Kemp  V.  Coughtry,  11  Johns.  109.     pp. 

215,  238. 
Kempson  v.  Boyle,  3  Hurl.  &  Colt  763. 

p.  809. 
Kenchin  v.  Knight,  1  Wils.  253.     p.  86. 
Kendall  o.  Field,  14  Me.  30.     p.  83. 
Kendall  «.  Russell,  5  Dana,  601.    pp.  103, 

442. 
Kennebec  Co.  v.  Augusta  Ins.  Co.,  6  Gray, 

204.    p.  82. 
Kennebeck   Bunk  v.  Page,  9  Mass.  166. 

p.  121. 
Keniiey  n.  Altvater,  77  Pa.  St.  34.     p.  280. 
Kent  fi.  Coughtry,  11  Johns.  107.     p.  143. 
Konyon  u.  Nichols,  1  R.  I.  106.    p.  331. 


Keogh  t>.  Daiiiell,  12  Wis.  163.     pp.  271, 

272. 
Kerfoot  v.  Hyman,  52  111.  512.     p.  295. 
Kermott  v.  Ayer,  11  Mich.  181.     p.  317. 
Kerr  v.  Love,  1  Wash.  (Va.)  172.    p.  82, 
Kerr  v.  Potter,  6  Gill,  404.    p.  283. 
Kershaw  v.  Wright,  115  Mass.  .361.     p.  80. 
Keysor  v.  School  District,  35  N.  H.  483. 

p.  246. 
Kidston  v.  Empire  Marine  Ins.  Co.,  L.  R. 

1  C.  P.  535.     p.  403. 
Kilgore  v.  Bulkloy,  14  Conn.  367.     p.  206 
Kimball  v.  Brawner,   47  Mo.  898.     pp. 

296,  444. 
Kimball  u.  Cunningham,  4  Mass.  405.    p. 

311. 
Kimber  v.  Barber,  L.  R.  8  Ch.  56.    p. 

294. 
Kinder  v.  Shaw,  2  Mass.  398.     p.  290. 
King  0.  Bishop  of  London,  Show.  413, 

420.    p.  457. 
King  V.  Coopers'  Co.,  7  Term  Rep.  543. 

p.  463. 
King  V.  Enterprise  Ina.  Co.,  45  Ind.  43. 

p.  439. 
King  V.  King,  4  Scotch  Sess.  Cas  683.    p. 

61. 
King  V.  Savery,  6  H.  L.  Cas.  627.     p.  311. 
King   V.   Tappenden,    3   East,    186.    p. 

463. 
King  (The)  v.  Bank  of  England,  Doug. 

626.    p.  247. 
Kingman  v.  Spurr,  7  Pick.  235.    p.  283. 
Kingsbury  v.  Taylor,  29  Me.  508.    pp. 

306,  309. 
Kingston   v.  Krubbs,  1   Camp.  608.    p. 

252. 
Kingston  v.  Phelps,  Peake  N.  P.  227.    p. 

361. 
Kingston  v.  Wilson,  4  Wash.  C.  Ct.  16 

p.  291. 
Kingston  Bank  v,  EUinge,  40  N.  Y.  391. 

p.  468. 
Kinne  v.  Ford,  52  Barb.  194.    p.  67. 
Kinney  v.  Consolidated,  etc..  Mining  Co., 

4  Sawyer,  382.     p.  390. 
Kinsman  u.  New  York  Ins.  Co.,  5  Bosw. 

460.    p.  237. 
Kirchner  v.  Venus,  12  Moo.  P.  C.  0.  861. 

p.  58. 
,,  Kirk  f.  Hartmau,  63  Pa.  St.  97.    p.  864. 


■:£!itl 


m 


xliv 


TABLE    OF   CASKS   CITED. 


i 


11 


Kirkondnll  r.  Mitchell,  3  McLciin,   144. 

p.  388. 
Kirkland  )•.  Nisbet,  Scotch  App.  Rep.  87(). 

p.  101. 
Kirkrnan  r  Shawcross,  0  Term  Kep.  14. 

pp.  2.'50,  341. 
Klikpatrick  w.  Stainer,  22    Wend.  'J44. 

p.  302. 
Kirtlanfl   r.   Montgomery,  1  Swan,  452. 

pp.  21'),  23(1. 
Kitchell  V.  Vnmidar,  1   Blackf.   35f).     p. 

238. 
Kittle  V.  De  Lainater,  3  Neb.  32').     p.  21 4. 
Kleekamp  /?.  Mejer,  5  Mo.  App.  444.     p. 

208. 
Kleine's  .Appeal,  39  Pa.  St.  4()3.     p.  330. 
Knapp  ».  Hyde,  60  Barb.  80.     p.  3t)r). 
Knapp  V.  United  States  Express  Co.,  55 

N.  H.  348.    1).  236. 
Knif,'ht  /;.  Chambers,  15  C.   B.  562.     p. 

288. 
Knight  V.  Mitchell.  3  Brev.  506.     p.  317. 
Knowles  v.  Dow,  22  N.  U.  387.     p.  331. 
Knowles  «.  Horsfull,  5  Barn.  &  Aid.  134. 

pp.  202,  203.  204. 
Knox  V.  Artmaii,  3  Kich.  L.  283.     p.  270. 
Knox  V.  Jones,  2  Dali.  193.     p.  317. 
Knox  V.  Kives,  14  Ala.  249.     p.  215. 
Khox  v.  The  Ninetta,  Crabbe,  534.     p. 

435. 
Kortright  w.  BuflTalo  Commercial  Bank, 

20  Wend.  91,     p.  248. 
Koons  w.  Miller,  3  Watts  &  S.  271.     p. 

317, 
Konitzky  v.  Meyer,  49  N.  Y.  571.    p.  305. 
Koehring  v.  Moemminghoff,  Gl  Mo.  403. 

p.  364. 
Kohl  V.  Linder,  39  111.  195.     p.  309. 
Kohii  0.  Packard,  3    La.  224;   23  Am. 

Dec.  463.    p.  71. 
Kraft  V.  Fancher,  44  Md.  204.     p.  286. 
Kremor    o.    Southern    E.vprcas    Co.,    6 

Coldw.  356.     p.  235. 
Kroy  y.  Cliicngo,  etc.,  R.  Co.,  32  Iowa, 

427.     p.  327. 
Kniger  u.  Wilcox,  Amb.  252.     p.  20. 
Kuhlman  v.  Brown,  4  Pick.  479.     p.  293. 

Lacon  v.  Hooper,  6  Term  Rep.  224.     p. 

110. 
Latferty  v.  Jelley,  22  Iiid.  471.     p.  294. 


Lamb  v.  (t  rover,  47  Barb.  317.     j).  283. 
Lamb  v.  Klaus,  30  Wis.  94.     p.  317. 
Lamb  i\  Parkmaii,  1  Sprague,  343.     pp. 

221,  222. 
Lampton   r.  Haggard,  3   Men.  149.      p. 

386. 
Lancaster  Bank  r.  Woodward,  18  Pa.  St. 

357.     p.  70. 
Landis  i\  Turner,  14  Cal.  573.     p.  82. 
Lane  w.  Bailey,  47  Barb.  395,     p,  435, 
Lane  ».  Cotton,  1  Salk.  143;  a.  c.  1  Ld. 

Raym.  649.     p.  136. 
Lan<,'  r.  Gale,  1  Man,  &  Sel,  111,     p.  111. 
Langdale,  Kx  parte.  2  Rose,  444,     p.  284. 
Larigdon  v.   Kquitable   Ins.  Co.,  1  Hall, 

227.     p.  259. 
Langdon  v.  Town   of  Castleton,  30  Vt. 

285.     p,  52. 
Langford  w.  Cummings,  4  Ala.  46,     p.  41. 
Lansdowne  v.  Somerville,  3  Post,  &  Fin, 

2.S6.     p.  45, 
Lapham  v.  Atlas  Ins.  Co,,  24  tick.  1.     p. 

258, 
Larue  v.  Rowland,  7  Barb,  107,     p,  83. 
Lassell  <;,  Reed,  6  Green!,  222,     p.  267, 
Lattomus  v.  Farmers'  >Iutual  Ins.  Co.,  3 

Houst,  254.     p,  440, 
Laussatt  c,  Lippincott,  6  Serg,  &  R,  386, 

pj).  28'.i,  290,  291, 
Laveroni  r,  Drury,  16  Jur,  1024;  8  E.\ch. 

1(J6.    p.  436, 
Law  V.  HoUingsworth,  7  Term  Rep.  160. 

p.  267. 
Lawrence  v.  Aberdein,  5  Barn.  &  Adol. 

107.    p.  414. 
Lawrence  v.  American   National   Bank, 

54  N.  Y,  432.    p,  468. 
Lawrence  v.  Gallagher,  10  Jones  &  Sp, 

309.     p.  369. 
Lawrence  v.  McGregor,  Wright,  193.    p, 

319. 
Lawrence  v.  Stonington  Bank,  6  Conn. 

521.     p.  209. 
Lawson    v.   Richards.  6   Phila.   179.     p. 

209. 
Lawson  v.  WorLis,  6  Cal.  365.     p.  237, 
Laybourn  v.  Crisp,  4  Mee.  &   W,  320, 

p.  17, 
Laycock  v,  Davidson,  11   La,   An.  328. 

p.  364, 
La/.arus  v.  Bryson,  3  Lim>.  64.     p.  295. 


TABLK   OF   CASES    CITED. 


xlv 


386. 


Exch. 


160. 


Adol. 


Bank, 


&  Sp. 


1 93.    p. 


Conn. 


|79.    p. 

237. 
320. 


328. 


295. 


LH/.arc  V.  Jacques,  15   La.  An.  699.     p. 

3»i5. 
Lpft  V.  Stroud,     pp.  120,  i:'.!. 
r>((flch    V.  Beardslee.  22    Conn.   104.     p. 

2(tO. 
Lench  v.  Perkins,  17  Me.  4'Vl.     p.  4.'>. 
Leake    «.  Sutherland.  26  Ark.  2l'.t.     p. 

294. 
Leame  ».  Bray,  3  East.  593.     p.  824. 
Leavenworth,  etc..  K.  Co.  v.   Maris,   16 

Kan.  333.     p.  22o. 
Lehanoii  i'.  Heath,  47  N.  H.  3'):{.     p.  2H7. 
Leoky  v.  McUermott,  8  Serg.  &  R.  500. 

p.  238. 
Le  Contour  y.  London,  etc.,  K.  Co.,  L.  K. 

1  Q.  B.  54.     p.  221. 
Lee  V.  Adsit,  37  N.  Y.  87.     p.  291. 
Lee  0.  Kilburii,  3  Gray,  694.     p.  304. 
Lee  V.  Pain,  4  Hare,  251.     p.  399. 
Lee  V,  Salter,  Lalor,  lt;3.     p,  215. 
Lee  V.  Trustees  of  Fleinin^sbiirg,  7  Dana, 

28.    p.  244. 
Lee  V.  Wall  is.  1  Keny.  Cas.  275.     p.  4t)3. 
Lefevre  o.  Lefevre,  2  N.  Y.  S.  C.  (T.  &  C.) 

331 ;  59  N.  Y.  434.     p.  ;;98. 
LeffiiigwoU  V.  White,   1  Johns.  Cas.  99. 

p.  111. 
Loftley  c.  Mills,  4  Term   liep.  170.     p. 

119. 
Lcggat  i\  Sands    Ale    Brewing  Co.,    60 

111.  1-58.     p.  109. 
Leggett  e.  Bank  of  Sing  Sing,  24  N.  Y. 

283.    p.  24(1. 
Leggett  V.  Cooper,  2  Stark.  N.  P.  103. 

p.  312. 
Lngijett  0.  Hyde,  58  N.  Y.  272.     p.  2H3. 
Liggult  0.  Insurance   Co.,   10   Rich.  L. 

2it2.     pp.  259,  260. 
Legh  V.  Hewitt.  4  East,  154.     pp.  30,  2(i7. 
Lograiid  v.   Hampden  College,  5  Munf. 

324.    p.  244. 
Lehman  v.  Marshall,  47  Ala.  362.     pp. 

1.9,  4(30. 
Leigh  It.  Mobile,  etc.,  R.  Co.,  68  Ala.  166. 

p.  303. 
Leigh  V.  Smith,  1  Car.  &  P.  688.    pp. 

103,  216.  216,  217. 
Leigh's  Kstate.  In  re,  L.  R.  6  Ch.  Div. 

266.     p.  294. 
Leland  v.  Douglass,  1    Wend.  490.     p. 
300. 


Leniu'>ter  v.  Burckhart,  2   Bibb,  25.     p. 

3t)4. 
Leonard  v.  Fowler,  44  N.  Y.  289.     p.  .303. 
Leonard  v.  Peoples,  30  Ga.  61.     p.  69. 
Leppoc  V.  Bank,  32  Md.  13ti.     p.  366. 
Le  Roy  v.  .Fohnson,  2  Pet.  200.     p.  282. 
Le  Roy  v.  United  States  Ins.  Co.,  7  Johns. 

343.'    p.  2-57. 
Lethulier's  Case,  2  Salk.  443.    pp.  148, 

40!. 
Leuckart  c.  Cooper,  3  Scott,  621.     p.  76. 
I^enckart  v.  Cooper,  7  Car.  «fe  P.  119.     pp. 

27,  76. 
Levy  i\  Bank  of  United   States  4  Dull. 

234.    p.  211. 
Levy  V.  National  Bank,  7  Cent.  L.  J.  249. 

p.  210. 
Lewis  i\  Harris,  1  H.  Black.  7.     p.  269. 
Lewis  y.  Lyman,  22  Pick.  437.    p.  207. 
Lawis  0.  Marshall,  7  Man.  &  G.  729.     pp. 

44,  99,  lOJ,  236,  3ti8. 
Lewis  V.  Planters'  Bank,  3  How.  (Miss.) 

207.     p.  200. 
Lewis  I'.  Thatcher,  15    Mass.   438.     pp. 

250,  439. 
Lewis  V.  The  Success,  18  Lu.  An.  1.     p. 

45. 
Lielilenhein  v.  Boston,  etc.,   R.  Co.,  11 

Cush.  70.     p.  320. 
Lickbarrow  v.  Mason,  2   Term  Rep.  73. 

pp.  20,  238. 
LieJemann  v.  Schultz,  14  C.  B.  38.     p. 

4n. 

Lime  Rock  Bank  v.  Hewett,  52  Me.  51. 

p.  58. 
Lime  Rock  Bank  i;.  Plimpton,  17  Pick. 

159.     p.  292. 
Lincoln,  etc..  Bank  w.  Page,  6  Am.  Dec. 

52 ;  9  Mass.  157.     pp.  143,  205,  200. 
Lindley  c.  Lacej-,  17  C.  B.  (n.  s.)  558.     p. 

364. 
Linn  o.  Naglee,  4  Whart  92.     p.  82. 
Liimell  u.  Sutherland,  11  Wend.  668.    pp. 

82,  84. 
Linsley  v.  Lovely,  26  Vt.  123.     pp.  83, 

378.' 
Lintner  v.  Milliken,  47  111.  178.     p.  283. 
Liotard  v.  Graves,  3  Caines,  216.     pp.  62, 

317. 
Little  V.  Newton,  2  Scott  N.  R.  509.     p. 

288. 


^S' 


mm 


f>£f 


it 
1 


xlvi 


TABLE    OF    CASE.S    CITKI). 


1^ 


Litllctield  v.  Maxwell,  31   Me.   135.     p. 

■6'dl. 
Livermore  v.  Blood,  10  Mo.  48.     p.  214. 
Livingston  v.  Ten  liroeck,  IG  Johns   14; 

7  Am.  Dec.  287.     p.  388. 
Livingston  v.  Arnoux,  56  N.  Y.  618.     p. 

82. 
Livingston  v.  Maryland  Ins.  Co.,  7  Cranch, 

rm.    pp.  102,  258. 
Liviniif^iton  v.  Pittsburg,  etc.,  R.  Co.,  2 

Grant  Cas.  219.     p.  281. 
Lloyd  V.  Colston,  6  Bush,  587.     p.  295. 
Lloyd  V.  Gilbert,  26  L.  J.  (Q.  B.)  74.     p. 

287. 
Lloyd  V.  Jones,  12  Jur.  657 ;  17  L.  J.  (C. 

P.)  206;  6  0.  B.  81.  pp.  31,  331,  332. 
Locke's  Appeal,  72  Pa.  St.  491.  p.  288. 
Lockett  V.  Nicklin,  2  Exch.  93.  p.  451. 
Lockbart  v.  Dewees,  1  Texas,  535.     pp. 

466,  473. 
Lockridge  v.  Wilson,  7  Mo.  560.    p.  282. 
Lockwood  V.  Mechanics'  National  Bank, 

9R.  L308.    p.  247. 
Lodwicks  V.  Ohio  Ins.  Co.,  5  Ohio,  4o6. 

p.  319. 
Logan  V.  Sumter,  28  Ga.  242.     p.  468. 
Lombardo  v.  Case,  46  Barb.  95.    p.  447. 
London,  etc.,  R.  Co.  v.  Winter,  1  Cr.  & 

Ph.  67.    p.  244. 
London,  etc.,  Soc.  v.  Hagerstown,   etc., 

Bank,  36  Pa.  St.  498.     p.  281. 
Lonergan  «.   Courtney,  76  111.  580.    p. 

448. 
Iionergan  v.  Stewart,  55  111.  44.    p.  47. 
Long  V.  Allen,  Park.  390.    p.  248. 
Longmer  v.  Smith,  1  Barn.  &  Cress.  1 ; 

2  Dow.  &  Ry.  23.    p.  308. 
Loomis  V.  Marshall,  12  Conn.  70.    p.  283. 
Loomis  V.  Simpson,  13  Iowa,  682.    p.  288. 
Lord  V.  Burbank,  18  Me.  178.     p.  38. 
Lord  V.  Grow,  39  Pa.  St.  88.    p.  806. 
Lord  Abinger  v.  Aahton,  L.  R.  17  Eq. 

358.    p.  369. 
Lord  Lovelace's  Case,  W.  Jones,  270.    p. 

467. 
Loring  v.  Gturney,  5  Pick.  15.     p.  52. 
Loud  V.  Hall,  106  Mass.  404.     p.  297. 
Lounsbewy   v.   Protection    Ins.    Co.,  8 

Conn.  459.     p.  259. 
Love  r.  Hinckley,  Abb.  Adm.  436.     pp. 

453,  462. 


Love  V.  Oldham.  22  Ind.  61.     p.  ;ni. 
Loveland  v.  Burke,   120  Mass.  139.     pp. 

231,  321. 
Lowe  V.  Lehman,  15  Ohio  St.  179.     pp. 

53,  54,  112,  391. 
Lowry  v.  Adams,  22  Vt.  160.     p.  :i64. 
Lowry    v.    Brooks,    2  McCord,    421.     p. 

283. 
Lowry  v.  Russell,  8  Pick.  360.     p.  254. 
Lucas  V.  Bristow,  El.   Bl.  «&  El.  907.     p. 

379. 
Lucas  V.  Groning,  7  Taun.  164.     p.  377. 
Lucas  V.  Nockells,  4  Bing.  729.     p.  241. 
Lucas  V.  Worswick,  1  Moo.  &  R  293. 

p.  468. 
Luce  V.  Dorchester  Ins.  Oo.,   105  Mass. 

899.     p.  55. 
Lucy  Annie  (The),  18  Law  Rep.  (n.  s.) 

645.    p.  463. 
Lufkin  V.  Haskell,  8  Pick.  356.     p.  77. 
Lull  t).  Cass,  43  N.  H.  62.     p.  865. 
Lupin  V.  Marie,  6  Wend.  77.     p.  814. 
Lynch  v.  Fallon,  11  R.  L  311.     p.  295. 
Lynes  v.  The  State,  46  Ga.  208.     pp.  104, 

333. 
Lyon  V.  Culbertson,  5  Cent.  L.  J.  401. 

p.  47. 
Lyon  V.  George,  44  Md.  295.    pp.  53,  64, 

278. 
Lyon  V.  Jerome,  26  Wend.  485.     p.  288. 
Lyon  V.  Valentine,  33  Barb.  271.    p.  294. 
Lyons  v.  Depass,  3  Per.  &  Dav.  177.    p. 

17. 
Lyons  v.  Green  Bay,  etc.,  R.  Co.,  42  Wis. 

548.    p.  880. 

Macdonald  v.  Longbottom,  1  El.  &  Bl. 

975.    p.  378. 
Mackay  v.  Dillinger,  73  Pa.  St.  85.    p. 

290. 
Mackenzie  v.  Dunlop,  8  Macq.  H.  L.  Cii. 

26.    p.  878. 
Mackenzie  v.  Schmidt,  22  Am.  I*  Beg. 

448.     p.  435. 
Macklin  v.  New  Jersey  Steamboat  Co., 

7  Abb.  Pr.  (n.  s.)  229.     p.  72. 
Macomber  v.  Howard  Ins.  Co.,  7  Gray, 

257.    p.  260. 
Macomber  v.  Parker,  13  Pick.  182.    p. 

486. 
Macus  V.  Henderson,  1  East,  887.     p.  290. 


f 


■I 


1 


TABLE   OF   CASES    CITED. 


xlvii 


p.  288. 

p.  294. 

1 177.    p. 

42  Wis. 


11.  &  Bl. 


85.    p. 


L.  C?i. 


lit.  Keg. 


}at  Co., 


Macy  V.  Whaling  Ins.  Co.,  9  Melf.  354. 

pp.  28,  fi«,  401. 
Maai'i'  '■.  Atkinson,  2  Mee.  &  W.  440. 

pp.  302,  845,  481,  484. 
Magee  v.  Billingsley,  3  Ala.  619.     p.  308. 
Maghec  c  Camden,  etc.,  K.  Co.,  45  N.  Y. 

.014.     p.  229. 
Matcill  V.  Brown,  Bright.  P4«.     p.  20. 
Magistrates   of  Dunbar    t'.   r>uche.s8    of 

Roxburgh,  8  CI.  iS;  Pin.  HM.     p.  462. 
Magruder  v.  Gage,  83  Mi.  344.     p.  314. 
Magrath  t>.  Hardy,  6  Scott,  027.     p.  17. 
Maguiro  v.  Woodside,  2  Ililt.  59.     p.  435. 
Mahaiwe  Bunk  D.Douglass,  31  Cc  in.  170. 

p.  212. 
Mahoney  c.  Kekuhe,  14  C.  B.  390.     p. 

301. 
Main  v.  Eagle,  1   E.  D.  Smith,  619.    pp. 

10^,  294. 
Mair  r.  Glennie,  4  Mau.  &  Sel.  240.    p. 

283. 
Mallan  i-.  May,  13  Mee.  &  W.  611.    pp. 

404,  405. 
Mallett  V.  Uncle  Sam,  etc.,  Co.,  1  Nev. 

188.    p.  390. 
Malpas  V.  London,  etc.,  K.  Co.,  L.  R.  1  C. 

P.  336.    p.  3t)4. 
Maltby  v.  Railroad  Co.,  16  Md.  422.    p. 

281." 
Manby  c.  Long,  3  Lev.  107.    p.  243. 
Manchester  v.  Burns,  45  N.  H.  482,    p. 

408. 
Manfield  v.  Maitland,  4  Barn.  &  Aid.  582. 

p.  237. 
Mangum  i-.  Ball,  43  Miss.  288.    p.  292. 
Mangum  v.  Farrington,  1  Daly,  230.    p. 

267. 
Manhattan  Co.  v.  Lydig,  4  .Johns.  377. 

p.  20t>. 
Mansfield  v.  Inhabitants,  15  Gray,  149. 

p.  400. 
Mansfield  v.  Trigg,  113    Mass.  850.    p. 

311. 
Marc  I-.  Kupfer,  34  111.  286.    p.  450. 
Marlian  v.  Elliott,  Hume,  393.    p.  54. 
Marine  Bank  v.  Birney,  28  111.  90.    pp. 

211,  458. 
Marine  Bankv.  Chandler,  27  III.  526.    pp. 

474,  484. 
Marine  Bank  v.  Ogden,  29  111.  248.    pp. 
210,  458. 


Marine  Bank  c.  Ilushmore,   28  111.  463. 

pp.  210,  458. 
^Murine  Bank  of  Chicago  v.  Chandler,  27 

Til.  .VJO.    p.  210. 
Market  Bank  r.  Hartshorne,  SKeyes,  137. 

|i.  21.!. 
Markham  r.  Jaudon,  41  N.  Y.  236.     pp 

310,  483. 
Markle  >:  Hatfield,  2  .Johns.  462.    p.  211. 
Marks  r.  Cass  Elevator  Co.,  43  Iowa,  140. 

p.  4.52. 
Marlatt  o.  Clary,  20  Ark.  261.    p.  46. 
Marquand   v.  New  York  Man.  Co.,    17 

John-.  525.    p.  283. 
Manjuis  of  Salisbury  v.  Gladstone,  9  H. 

L.  Cas.  692.    pp.  17,  31,  05. 
Marrett  v.  Hrackett,  00  Me.  524.    p.  207. 
Marsden  v.  Reid,  3  East,  577,     p.  254. 
Marsh  v.  Colby,  39  Mich.  020.    pp.96, 

332. 
Marsh  v.  Frazer,  47  Wis.  149.    p.  317. 
Marsh  v.  .Jelf,  3  Fost.  &  Fin.  234.     p.  45. 
Marsh  v.  Marshall,  63  Pa.  St.  390.     p.  214. 
Marshall   v.   American   Express    Co.,   7 

Wis,  1.     pp.  96,  232,  233. 
Marshall  ».  Parsons,  9  Car.  &  P.  656.     p. 

294. 
Marshall  v.  Perry,  67  Me.  78.     p.  318. 
Marston  v.  Bank  of  Mobile,  10  Ala.  284. 

p.  98. 
Martin  o.  Bank  of  United  States,  4  Wash. 

C.  Ct.  253.     p.  212. 
Martin  v.  Clarke,  8  R.  I.  389.     p.  866. 
Martin  v.  Gilham,  7  Ad.  &  E.  640.    p. 

267. 
Martin  v.  Hall,  26  Mo.  386.     p.  45. 
I  Martin  v.  Hilton,  9  Mete.  371.    pp.  277, 
I      405. 
Martin  v.  Maynard,  16  N.  L.  io6.    p.  45. 
Martin  v.  Solonibo,  etc..  Mining  Co.,  26^ 

Cal.  527.     p.  390. 
Martin  v.  Thrasher,  40  Vt.  460.     p.  393. 
Martin  v.  Union   Pacific  R.  Co.,  1   Wy. 

Ter.  143.     p.  438. 
Martineau  v.  Ketching,  L.  R.  7  Q.  B.  436. 

p.  815. 
Martini  v.  Coles,  1  Mau.  &  Sel.  140.    p. 

290. 
Martyn  v.  Clue,  18  Q.  B.  661.    p.  270. 
Martyn  v.  Gray,  14  C.  B.  (n.  8.)  824.    p. 
284. 

D 


m 


1! 


nr-: 


xiviii 


TABLK    Of    CA8ES    CITED. 


^lii 


d 


t, 


,11! 


Martyr  v.  Brudloy.  0  Biiig.  24.     p.  272. 
Marvin  v.  IJuclmiian.   •12   Barb.  4*)S.     p. 

294. 
Mary  Wasliincjtoti  (The)  i\  Ayres,  5  Am. 

L.  liei;.  (n.  m.)  fi'.»2.     1 1.  227. 
Miiryeu.  Strnu.sc.     p.  oO 
Miiryliind  Fin*  In*.  Co.  v.  Wliilefoid,  31 

M(l.  210.     p.  10S. 
Ma.sl)iter  v.  liullor,  1  Camp.  84.     p.  2:!7. 
Mn=on  r.  liniirnnn,  02  111.  7ti.    p.  2'.il. 
Mason  y.  Bowles,  117  Mass.  8i).     p.  !i80. 
Mason  c  CliappcU,  16  (iratt.  572.     p.  lO'.i. 
Mason  V.  Franklin  Ins".  Co.,  12  Gill  &  .1. 

408.    p.  107. 
Mason  r.  Moyers,  2  Rob.  (Va.)  OO'i.     p. 

2fi9. 
Mason  r.  Potter,  20  Vt.  722.    p.  28:!. 
Mason  r.  Skunuy,  Park  on  Ins.  245.     p. 

401. 
Miissiicluisetts  Iron  Co.  v,  Hoopor,  7  Cush. 

183.    p.  240. 
Mns.sey  v.  Banner,  1  .Jac.  &  W.  241.     p. 

281." 
.M,is-,ey  0.  Davis,  2  Ves.  jr.  317.     p.  2'M. 
Master  Pilots,  etc.,  r.  BradU-y.  2  Kl.  &  Bl. 

428.    p.  2ti. 
Master,  i.'tc.  of  St.  t'ross  r.  Lord  Howard 

do  VV'aldon,  0  'leim  Rep. 3iJ8.     pp.  3:i7, 

4.'V4. 
Mastin  v.  Delaware  Ins.  Co.,  2  Wash.  C. 

Ct.  254.    p.  42. 
Mathes  r.  Robinson,  8   Mete.  209.     p.  84. 
Matthews,   Kx  parte,  3  Ves.  «&  Bea.  125. 

p.  284. 
Maury  c.  Beekniaii,  9  Paige,  188.     p.  453. 
Maury  v.  Talniadge,  2  McLean,  157.     p. 

Mu'-erick  (The),  1  Sprague,  23.     p.  71. 
Maxted  v.  Paine,  L.  li.  4  Excli.  210.    pp. 

09,  288. 
Maxwell  V.   Dulwich   Hospital,  4  L.  J. 

(Ch.)  131.     p.  244. 
Maxwell  v.  Eason,  1  Stew.  514.    p.  323. 
May  u.  Buckeye   Ins.  Co.,  25  Wis.  291. 

p.  258. 
Mayell  v.  Potter,  2  Johns.  Cas.  371.    p. 

235. 
Mayhew  v.  Soper,  10  Gill  &  J.  306.    p. 

333. 
Mayor  r.  Hamilton  P'ire  Ins.  Co.,  10  Bosw. 

637.    p.  258. 


Mayor  V.  Horner.  Cowp.  102.     p.  14«. 
.Mayor  c,  Lonif,  1  Camp.  21.     p.  402. 
.Mayor  of  Linn  Regis  c.  Taylor,  ;>  Lev. 

100.     p.  15. 
.Mayor  of  Tlict  ford's  Case.  1  Salk.  191 :  3 

S'alk.  10.!.     p.  244. 
Mayor  of  VVinton  v.  VVilks,  11   M 

48,     p.  07. 
Mea.l  ' .  |-:ti-<,  •'>  Cow.  ;10.'!.     p.  200. 
Mead  -".  .Nor'.h-We.stern  Ins.  Co.,  7  N.  Y. 

6'!0.     J).  400, 
Meade   r.  Ueale,    Taney's    Dei.  330.     p. 

10;!. 
Meads  .-.  Merchants'  Bank,  Jo  N.  Y.  1 13. 

p.  20.".. 
:\Ieaher  - .  Lufkin,  21  Texas.  .".83.     p.  466. 
Meurs  -•,  Waples,  3  Houst.  581.     pp.  30, 

107. 
Mears  r.  VVaples,  4  Iloust.  02.    p.  104. 
Mechanics'   Bank  >•,  Foster,  44  Barb.  87. 

p.  280. 
Mechanics'  Bank  r.  Merchants'  Ban'-  45 

Mo.  513.    p.  240. 
Me(!hanics',  etc.,  Bank  r.  Smith,  19 

115.     p.  408. 
Meoch  r.  Smiih.  7  Wend.  315.     pp.  62, 

••118. 
.Meiglien  v.  Bank.  25  Pa.  St.  288.     p.  80. 
Melius  r.  Mutual  .Marine  Ins.  Co.,  2  Cusb. 

439.     p.  108. 
Meldrum  r.  Snow,  9  Pick.  441.     p.  316. 
Mellish  r.  Andrews,  2  Man.  «&  Sel.  26.    p. 

254. 
Mellish    V.  Motteux,    Peake  N.  P.  116. 

pp.  1H7,  188. 
Melviu  V.  Luaycraft,   17  Wend.  169.     p. 

200. 
Memphis  R,  Co.  v.  Holloway,  4  Law  <fr 

Eq.  Rep.  425.     p.  7  J. 
Menzies  c.  Lightfoot,  40  L.  .J.  (Ch.)  661 ; 

L.  R.  1 1  Eq.  4'.9.    pp.  50,  307,  473. 
Mercantile  Ins.  Co.  c.  State  Ins.  Co.,  25 

Barb.  310.    p.  435. 
Merchant    Tailors'    Co.   o.  Truscott,   11 

Exch.  856.    p.  17. 
Merchants'  Bank  v.  Central  Bank,  1  Ga. 

418.    p.  246. 
Merchants'  Bank  c.  State  Bank,  10  Wall. 

604.    p.  205. 
Mercliants'  Despatch  Go.  r.  Hallock,  64 

111.284.    p.  225. 


TABLE    OF    CASES    CITED. 


xlix 


315. 
,  '26.     p. 

P.  115. 

1 169.     p. 
Law  ST' 


Mcrchiints'  In?.  <"...  .-.  Shillito.    15  Ohio 

St. -mO.     p.  221. 
Mt^rclmiits'  Miitu:*!    \\\<.  Co.  r.  WiUoii.  2 

Md.  217.     pp. '.'•■>.  257. 
Merchants',  etc.,  Transp,  Co.  d.  Asso<'iated 

Firemen's  Ins.  Co.,  11   Cunt.  li.  .J,  828. 

p.  24H. 
Merchants',  etc..  Trnnsp.  Co.  v.  St-^ry.  50 

Alfl.  5.     p.  828. 
Meres  .•.  AiHPll.  8  Wils.  275.     p.  ;iH4. 
M.riani  c.  Hansen,  2    Barb.  Ch.  ?',■:.     p. 

4t>'2. 
Merriiiui  r.  Hartford,  etc.,  R.  Co.,  20  Conn. 

:i5».     pp.  21 «,  217. 
Meiri<  k  v.  Hutlor,  2  Lans.  103.     p.  214. 
Merrick    r.  McNally,  26  Mich.  374.     p. 

'■'ill. 
Merrill  c  Arey,  3  Ware,  215.     p.  430. 
Merrill   v,  Ithaca,  etc..  K.  Co..  16   Wend. 

5Htl.     p.  82. 
Merry  ''.  Prince,  2  Mass.  176.    p.  265. 
Merwin  r.  Butler.  17  Conn.  138.    p.  215. 
Metz  r.  Alhreeht.  52  111.  491.     p.  815. 
Metcalf  c.  Weld,  14  Gray,  210.     pp.  12, 

37,  278. 
Meymot,  Ex  parte,  1  Atk.  19^).    p.  148. 
Miehiijan,  etc.,   R.   Co.  v.   Coleman,    28 

Mich.  440.    p.  37. 
Michigan    State     Bank    w.    Gardner,   15 

Gray,  8(>2.     p.  200. 
Middlesex  Husbandmen  v.  Davis,  3  Mete. 

133.     p.  403. 
Middlesex  (The),  11  Law  Rep,  (n.  s.)  114. 

p.  71. 
Middleton  v.  Hayward,  2  Nott  &  M.  9. 

p.  237. 
Miles  V.  Cattle,  6  Binjr.  743.     p.  221. 
Miletus  (Tlie),  5  Blatehf.  335.     p.  436. 
Millechamp  c.  Johnson,  Willes,  205.     p. 

31. 
Miller  r.  Burke,  68  N.  Y.  615.     p.  46. 
Miller  c.  Eshbach,  43  Md.  1.     p.  333. 
Miller  v.  (irove,  18  Md.  ■24'i.     p.  311. 
Miller  v.  Hackley,  5  Johns.  383.    p.  81. 
Miller  v.  Insurance  Co.,  1  Abb.  N.  C.  470. 

pp.  98,  112,  297. 
Miller  r.  Jones,  06  Barb.  148.     p.  315. 
^Miller  v.  Lea,  35  Md.  39f'..     p.  292. 
Aliller  v.  Miller,  68  Pa,  6t.  486.    p.  365. 
Miller  ».  Pendleton.  8  Gray,  547.     p.  328. 
Miller  u.  Stevens,  100  Mass.  518.    p.  375. 


Miller  r.  Tetheriiiu;loii.  >>  II  irl.  &  N.  278. 

p.  2.-.-,. 
.Miller  r.  Tnivers,  S  Biiii;-.  211.     p.  I0'_'. 
Miller  ?•.  Western  FarMiers',  etc..  Ins.  Co., 

I  Handy,  20(t.     p.  2(;3. 
Millett  -■.  Holt,  60  Me.  109.     p.  408. 
Mills  r.  Bunk  of  United  States,  11  Wheat. 

4:!1.    ))p,  ■')3,  180.  '207. 
Mills  r.  Hi. Hock,  2  Edw.  (.'h.  052.     p.  100. 
Mills  r.  llshc.  IOT0.X1.S.  300.     p.  45. 
Milwiird  r.  llibbert,  3  (i.  B.  120.     pp.  10(5, 

221,  257. 
Miner  r.   Bradley,  22  Pick.  457.     p.  311. 
Minnesota  (Jeiitral    H.  Co.  )'.  Mornjan,  52 

Barb.  217.     pp.  295,  406,  479,  485. 
Minter  v.  Pacific  R.  Co.,  41  Mo.  503.    p. 

280. 
Minturn  v.  Fisher,  4  Cal.  35.     p.  209. 
Minturn  v.  Warren  Ins.  Co.,  2  Allen,  80. 

p.  2;r. 
Mitchell    V.  Henry,  24   Sol.  J.  689.    p. 

873. 
Mitchell  V.  McDougal,  62  111.  498.     p.  365. 
Mitchell  I'.  United  States,  9  Pet.  711.    p. 

387. 
Mixer  v.  Coburn,  11  Mete,  559.    pp.  306, 

375. 
Mixer  i:  Cook.  31  Me.  340.    p.  314. 
Mi.ver's  Case,  4  De  G.  &  J.  680.    p.  311. 
Mobile  Marine,  etc.,  Ins.  Co.  w.  McMillan, 

27  Ala.  77.     p.  405. 
Mobile,  etc..  R.  Co.  t>.  Jay,  61  Ala.  247. 

p.  38. 
Mohawk   Bank   w.  Broderick,  ^3  Wend. 

133.    pp.  58,  -209. 
Mohawk  (The),  8  Wall.  153.    p.  238. 
Mollett  r.  Robinson,  L.  K.  5  C.  P.  646. 

p.  29^. 
Monroe  r.  Woodruff,  17  Md.  159.     p.  838, 
Montgomery  r.  Pickering,  116  Mass.  2'27. 

p.  805. 
Moody  y.  Roberts,  41  Miss.  74.     p.  82. 
Moody  V.  Surridge,  Park  on  Ins.  245.    p. 

401.' 
Moon  V.  Guardians  of  the  Poor,  8  Bing. 

N.  C.  814.     p. '289. 
Moore  v.  Bank  of  the  Metropolis,  13  Pet. 

302.    p.  280. 
Moore  v.  Campbell,  10  Exch.  323.    p.  877. 
Moore  v.  Eason,  11  Ired.  L.  608.    p.  871. 
Moore  1;.  Mourgue,  Cowp.  480.    p.  286* 


TABLE    OF   CASES    CITED. 


Til 


'i 


Moore  v.  Morris,  20  111.  2o5,    p.  450. 
Moore  v.  Protection  Ins.  Co.,  29  Me.  97. 

p.  25;t. 

Moore  v.  Smith,  19  Ala.  774.    p.  283. 
Moore  «.  Voughton,  1  Stark.  N.  P.  487. 

p.  45. 
Moran  v.  Prather,  28  Wall.  492.    p.  368. 
Morenu  u.  Dumagene,  20  La.  An.  230. 

p.  294. 
Morowood  V.  Wood,  4  Term  Rep.  157. 

p.  112. 
Morgan  v.  Bank  of  North  America,  11 

Am.  Dfc.  582.    p.  248. 
Morgan  v.  Mason,  4  E.  D.  Smith,  636. 

p.  293. 
Morgan  v.  Richards,  1  Browne,  178.    p. 

390. 
Morley  v.  Attenborough,  3  Exch.  500. 

p.  306. 
Morris    v.  Allen,  14  N.  J.  Eq.  44.     p. 

317. 
Morris  v.  Bowen,  62  N.  H.  416.    p.  286. 
Morris  v.  Cleasby,  1  Mau.  &  Sel.  576.    p. 

292. 
Morris  v.  Summerl,  2  Wash.  C.  Ct  203. 

p.  291. 
Morrison  v.  Allardyce,  2  Scotch  Sess.  Cas. 

387.    p.  54. 
Morrison  t'.  Bailey,  5  Ohio  St.  18.    pp. 

208,  475,  484. 
Morrison  v.  General  Steam  Nav.  Co.,  8 

Exch.  733.     p.  324. 
Morrison  r.  Hart,  2  Bibb,  4.    p.  109. 
Morrison  t».  Thompson,  L.  R.  9  Q.B.  483. 

pp.  294,  433. 
Morse  u.  Brackott,  98  Mass.  206.    pp.  311, 

313, 
Morse  v.  Congdon,  3  Mich.  649.    p.  82. 
Moses  V.  Boston,  etc.,  R.  Co.,  32  N.  H. 


523. 


p.  225. 


Moses  V.  Mead,  1  Denio,  378.    pp.  306, 

308. 
Moses  0.  Salt,  32  Beav.  269.    p.  318. 

Mosior  V.  Harmon,  29  Ohio  St.  220.    p. 

463. 
Motley  y.  Jones,  3  Ired.  L.  144.    p.  283. 
Mott  V.  Hull.  41  Ga.  117.    p.  287. 
Molt  V.  Richtmeyer,  57   N.  Y.  49.     p. 

304. 
Moule  V.  Brown,  4  Bing.  N.  C.  266.    p. 

209. 


Mounsey  w.Ismay,  1  Hurl.  «te  Colt  729;  9 

Jur.  (N.  8.)  306;  32  L.  J.  (Exch.)  94; 

11  Week.  Rpp.  270;  3  Hurl.  &  Colt 

486.    p.  65. 
Moxon  V.  Atkins,  3  Camp.  200.    pp.  258, 

404. 
Mover's  Appeal,  77  Pa.  St.  486.    p.  330. 
Muggleton  v,  Barnett,  2  Hurl.  &  N.  653. 

pp.  17,  108. 
Mumford  v.  Gething,  7  0.  B.  (n.  s.)  305. 

p.  397. 
Muneey  v.  Dennis,  1  Hurl.  &  N.  216.    p. 

276. 
Munn  V.  Burch,  25  111.  36.    p.  96. 
Murdock  v.  Chenango  County  Ins.  Co.,  2 

N.  Y.  220.    p.  161. 
Murray  v.  East  India  Co.,  5  Barn.  &  Aid. 

204.    p.  244. 
Murray  v.  Hatch,  6  Mass.  477.    p.  251. 
Murray  v.  Smith,  4  Daly,  277.     p.  306. 
Murray  v.  Spencer,  24  Md.  620.    pp.  36, 

386. 
Murray  v.  Ware,  1  Bibb,  325.    pp.  278, 

317. 
Musscy  V.  Eagle  Bank,  9  Mete.  306.    pp. 

104,108,  205. 

Mutual  Benefit  Life  Ins.  Co.  v.  Ruse,  8 

Ga.  584.    p.  265. 
Mutual  Fire  Ins.  Co.  v.  Rand,  24  N.  H. 

428.    p.  266. 
Mutual  Safety  Ins.  Co.  ».  Hone,  2  N.  Y. 

235.    p.  265. 
Muzzy  0.  Whitney,  10  Johns.  220.    p.  288. 
Myers  v.  Perry,  1  La.  An,  373.    p.  324, 
Myers  v.  Sari,  30  L,  J.  (Q.  B.)  9;  7  Jur 

(n.  s.)  97,    pp.  360,  368,  393. 
Myers  v.  Walker,  24  111.  133.    pp.  374, 

378, 
Mynn  v.  Jolliflfe,  1  Moo,  &  R,  826.    p.  292. 

McAllister  v.  Reab,  4  Wend.  483.    pp.  52, 

317. 
McArthur  v.  Ladd,  5  Ohio,  431.    p.  288. 
McCall  V.  Sun  Mutual  Ins,  Co.,  66  N.  Y. 

505,    p.  264, 
McCarren  v.  McNi'lty,  7  Gray,  189.    p. 

419. 
McCarty  t>.  New  York,  etc,,  R.  Co.,  80 

Pa,  St.  247.    p.  226. 
McCauUyv.  Cleveland,  21  Miss.  488.    p. 

288. 


I 

■$ 


TABLE   OF   CASES    CITED. 


-? 


p.  283. 
324. 
7  Jur 


p.  288. 
J6  N.  Y. 

189.    p. 

Co.,  80 

|438.    p. 


McClay  v,  Harvey,  90  111.  626.  p.  302. 
McCHntock  v.  Lury,  23  Ark.  215.  p.  100. 
McClure  v.  Cox,  32  Ala.  (il7.    pp.  408, 

436. 
McCombie  v.  Davies,  6  East,  538.    pp. 

238,  28t),  290. 
McCourry  v.  Suydam,  10  N".  J.  L.  245.     p. 

4GG. 
McCready    v.  Wright,  6  Duer,  571.    p. 

109. 
McCulloch  V.  Eagle  Ins.  Co.,  1  Pick.  280. 

p.  82. 
McCulloch  V.  Scott,  13  B.  Mon.  172.    p 

311. 
McCullough  V.  Talladega  Ina.  Co.,  46  Ala. 

370.    p.  246. 
McCune  v.  Burlington,  etc.,  R.  Co.  (Sup. 

Ct.  Iowa),    p.  400. 
McDowell  V.  Bank,  1  Harr.  (Del.)  27.    p. 

246. 
McDowell  V.  Ingersoll,  5  Serg.  &  K.  101. 

p.  45. 
McFarland  v.  Wheeler,  26  Wend. 467.    p. 

2:i9. 
McFerran  v.  Powers,  1  Serg.  &  R.  106.    p. 

402. 
McGovern  v.  Heissenbuttel,  8  Ben.  ^Z. 

p.  436. 
McGraw  v.  Sturgeon,  29  Mich.  426.    p. 

377. 
McGregor  v.  Insurance  Co.,  1  W  ash.  C. 

Ct.  39.    pp.  73,  440. 
Mclver  v.  Humble,  16  East,  169.     p.  284. 
Ml  Keen  r.  Delancy,  5  Cranch,  32.    p. 

402. 
ilcKenzio  v,  Nevins,  3  Mass.  434.    p.  802. 
McKibben  v.  Bakers,  1  B.  Mon.  122.    p. 

323. 
McKinstry  v.Pearsall,  8  Johns.  319.    pp. 

284,  387. 
McKiiight  V.  Dunlop,  4  Barb.  86.    p.  817. 
McLean  v.  Clark,  47  Ga.  24.    p.  365. 
McMasters  v.  Pennsylvania  R.  Co.,  59  Pa. 

St.  374.    pp.  25.  37,  68.  67,  225.  226. 
McMillan  v.  Michigan,  etc.,  R.  Co.,    10 

Mich.  79.    p.  242. 
McMorris  v.  Simpson,  21  Wend.  610,    p. 

286. 
MrNamara  v.  Dratt,  38  Iowa,   885.    p. 

•m. 

McNeill  V.  Arnold,  17  Ark.  154.    p.  97. 


I   McFherson  v.  Cheadel,  24  Wend.  15.    p. 
200. 
McPherson  u.  Rathbone,  11  VVond.96.    p. 
282. 

Nailor  i-.  Scott,  2  Ld.  Raym.  1558.    p.  172. 
Narragansett  Bank  v.  Atlantic  Silk  Co.,  3 

Mete.  282.     p.'.O. 
Nash  r.  Mitchell,  3  Abb.  N.  C.  171.    p. 

330. 
Natchez  Ins.  Co.  v.  Buckner.  4  How.  63. 

p.  257. 
Natchez  Ins.  Co.  o.  Stanton,  2  Smed.  & 

M.  340.     p.  107. 
National   Bank   v.  Burkhardt,  100  U.  S. 

086.     p.  45. 
National  Bank  of  America  t>.  Bangs,  106 

Mass.  441.    p.  211. 
National  Gold  &  Trust  Co.  v.  McDonald, 

51  Cal.  64.    p.  213. 
National  Park   Bank  v.  Ninth  National 

Bank,  46  N.  Y.  77.    p.  211. 
Naylor    i-.  Fall   River  Iron-Works,  118 

Mass.  317.     p.  278. 
Naylor  v.  Semmes,  4  Gill  &  J.  273.    p. 

333. 
Neitter  i-.  Bank,  1  Head,  162.    p.  205. 
Neill  V.  Billingsley,  49   Texas,  161.    p 

290. 
Neilson  v.  Harford,  8  Mee.  &  W.  806. 

p.  105. 
Nelson  v.  Sun  Mutual  Ins.  Co.,  71  N.  Y. 

453.    p.  403. 
Nevins  v.  Bay   State  Steamboat  Co.,  4 

Bosw.  225.    p.  231. 
Newbold  v.  Wright,  4  Rawle,  196.    pp. 

30,  291. 
Newburgh  v.  Newburgh,  5  Madd.  223.    p 

102. 
Newcastle-on-Tyne  v.  Bradlej',  2  E'.  & 

Bi.  428.     p.  300. 
Newell  I'.  Griswold,  6  Johns.  44.    p.  317. 
New  England  Fire  Ins.  Co.  v.  Schettler, 

38  111.  160.    p.  245. 
New  England  Marino  In.'.  Co.  w.  Chandler, 

16  Mass.  275.     p.  200. 
New  .Jersey  Steam  Nav.  Co.  v.  Merchants' 

Bank,  6  How.  344.     p.  215. 
New  Jersey   Zinc  Co.  i\  Boston  Frank- 
Unite  Co.',  16  N.  J.  Eq.  418.    p.  388. 
Newman  u.  Bean,  21  N.  H.  93.    p.  283. 


T^^ 


lii 


TABLE    OF   CASES    CITED. 


h-l 


:li 


lii 


i! 


Newsorn   v,  Thighen,  30  Miss.  414.    p. 

a«5. 

Newson  v.  Thornton,  6  East,  17.     p.  290. 
New  York  v.  Exchange  Ins.  Co.,  9  Bosw. 

424.    p.  258. 
New  York   Belting   Co.  o.  Washington 

Fire  Ins.  Co.,  10  Bosw.  428.     p.  407. 
New  York  Fircnieii's  Ins.  Co.  o.  Ely,  2 

Cow.  078.     p.  458. 
New  York,  etc.  Ins.  Co.  v.  New  York 

Fire  Ins.  Co.,  17  Wend.  359.     p.  265. 
New   York,  etc.,  Ins.  Co.  r.  Protection 

Ins.  Co.,  1  Story,  458.     p.  2i)5. 
Niagrtra  Fire  Ins.  Co.  o.  De   Graff,   12 

Mich.  124.    p.  259. 
Ningiira  County  Bank  v.  Baker,  16  Ohio 

St.  68.     p.  458. 
NiclioUs  V.  Webb,  8  Wheat.  326.    p.  82. 
Nichols  V.  De  Wolf,  1  K.  I.  277.    p.  108. 
Nichols  i:  llaynes,  78  Pa.  St.  174.     p.  83. 
Noble  V.  DurcU,  3  Term  Kep.  271.     pp. 

420,  454. 
Noble  V,  Kennowiiy.    I    Dong.  510.     pp. 

29,  92,  94,  95,  10  i,  120,  143,  166,  251, 

257. 
Nobleboro  y.  Clark,  68  Me.  87.    p.  286, 
Nolte,  Ex  parte,  2  (rlyn  &  J.  295.     p.  280. 
Nonoluck  Silk  Co.  v.  Fair,  1 12  Muss.  354. 

p.  58. 
Norden  Steamship  Co.  c  Deinpsey,  L.  K. 

1  C.  P.  Div.  654.     p.  409. 
Norman  «.  Cole,  3  Esp.  253.     p.  365. 
Norman  c.  Morrill.  4  Ves.  760.     p.  364. 
Norment  o.  Hull,  1  Humph.  320.     p.  283. 
Norris'  Appeal,  71  l*a.  St.  10().     p.  294. 
Northrop    v.  Graves,   19  Conn.  548.    p. 

468. 
Norton  i;.  Hey  wood,  20  .M(>.  359.     p.  38. 
Norton  r.  Young,  3  Me.  30.     p.  311. 
Norway  Plains  Co.  v,  Hoston,  etc.,  R.  Co., 

1  Gray,  263.     p.  225. 
Norway  Plains  Co.  c.  Bradley,  62  N.  H. 

110.     p.  383. 
Notnra  v.  Henderson,  L.  K.  5  Q.  B.  346. 

p.  238. 
Noyes  v.  Campbell,  29  Vt.  79.    p.  408. 
Nudd  r.  Hobbs,  17  N.  H.  625.    p.  331. 
Nutting  V.  Colt,  3  Halst.  Ch.  639.    p.  283. 

O'Bannon  v.  Southern  Express  Co.,   61 
Ala.  481.    pp.  216,  217. 


63;  6 

p.  331. 
p.  365. 


Ober  V.  Carson,  62  Mo.  209.    p.  314. 
Ocean  National  Bank  v.  Carll,  65  N.  Y. 

440.    p.  82. 
Oel ricks  v.  Ford,  23  How.  49.     pp.  32,  33, 

40,  451. 
Ogden  /■.  Astor,  4  Sandf.  311.     p.  283. 
Ogden  v.  Parsons,  23  How.  167.     p.  409. 
Ogilvie  r.  Foljumbe,  3  Mer.  53.     p.  '.64. 
Oland  V.   Burdwick,    C--*.   Eliz.  460;    5 

Coke,  116.     p.  173. 
Oldershaw  v.  Knoles,   4   Bradw. 

Bradw.  325.     p.  286. 
O' Linda  v.  Lothrop,  21  Pick.  292. 
Olivari  v.  Menger,  39  Texa-,  76. 
Oliver  e.  Pratt,  3  How.  333.     p.  294. 
OUivnnt  y.  Bayley,  5  Q.  B.  288.     p.  309. 
Olmstead  w.  Hill,  2  Ark.  346.     p.  283. 
Oneida  Man.   Co.   c.  Lawrence,  4   Cow. 

440.     pp.  308,  3-!2. 
0'Ni«      •   Buffalo  Ins.  Co.,  3  N.  Y.  122. 

p.  262. 
Ontario  Bankw.  Hennessey,  48  N.  Y.  54.5. 

p.  282. 
Oppenheim  v.  ilussell,  3  Bos.  &  Pul.  45. 

p.  136. 
Orange  Bank  o.  Brown,  3  Wend.  161.     p. 

136. 
Orange  County  Banlfr  ik  Brown,  9  Wend. 

85.     p.  221. 
Oreamuno   i\    Uncle   Sam.,    etc.,    Co.,  1 

Nev.  215.    p.  390. 
Ormrod  v.  Huth,  14  Mee.  &  W.  663.    p. 

308. 
Osborn  v.  Gantz,  60  N.  Y.  640.    pp.  309, 

314. 
Osborn  v.  United  States  Bank,  9  Wheat. 

738.     p.  241. 
Osgood  V.  Jones,  23  Me.  312.     p.  468. 
Osgood  v.  McConnell,  32  111.  74.    p.  460. 
Oslrand«^r  v.  Brown,  15  .Johns.  39.     pp. 

135,  136,  137,  144. 
Otsego  County  Bank  v.  Warren,  18  Barb. 

290.    p.  455. 
Otis  V.  Alderson,  10  Smed.  &  M.  476. 

pp.  306,  308. 
Ougier  v.  Jennings,  1   Camp.  505.    pp. 

143,  264,  257. 
Ouimit  V.  Hcnshaw,  36  Vt.  606.    p.  216. 
Outwater  r.  Nelson,  20  Barb.  29.     p.  378. 
Overman   v.  Hoboken  City  Bank,  30  N. 

J.  L.  61.    pp.  58,  207. 


I 
I 


TABLE    OF    CASKS    CITKD. 


liii 


Overseers  o.  Overseers,  3  Serg.  &  R.  117. 

p.  244. 
Oxcndale  r.  Wetnerell,  9  Barn.  &  Cress. 

386.    p.  312. 

Pacific  Iron-Works  v.  Newhall,  34  Conn. 

67.    p.  309. 
Pacifi    (The),  1  Deady,  71.     pp,  242,  405. 
Packard  v.  Earle,  113  Mass.  280.    pp.  232, 

235. 
Packard  v.  (Jetmaii,  6  Cov?.  767.    pp.  108, 

216,  217,  218,  225. 
Packer  v.  Ueatoii,  It  Cal.  568.    p.  o90. 
Paddock  v.  Forrester,  3  Alan.  A:  G.  903 ; 

3  Scott  N.  K.  715.     p.  112. 
Paddock  v.  Fradley,  1  Cromp.  &  J.  90. 

p.  364. 
Padelford  v.  Providence,  etc.,  Ins.  Co.,  3 

R.  I.  102.    p.  262. 
Page  V.  Cole,  120  Mass,  37.     p.  373. 
Pahlman  v.  Taylor,  76  111.  629.     p.  280. 
Paice  V.  Walker,  L.  R.  6  Exch.  173.    p. 

801. 
Palm  w.  Medina  Ins.  Co.,  20  Ohio,  637. 

p.  244. 
Palmer  w.  IMackbum,  1  Bing.  61.     p.  416. 
Palmer  v.  Clark,  106  Mass.  378.     p.  453. 
Palmer  v.  Pinkham,  33  Me.  82.     p.  284. 
Palmer  v,  State  Bank,  16  Iowa,  821.    p. 

886. 
Palmer  v.  Stockwell,  9  Gray,  237.     p.  317. 
Palmer  v.  Yates,  3  Sandf.  137.     p.  205. 
Paragon  (The),  Ware,  322.     p.  221. 
Park  i>.  .Miller,  27  N.  J.  L.  338.     p.  81. 
Park  0.  Piedmont,  etc.,  Ins.  Co.,  48  Ga. 

601.     pp.  103,  290. 
Parker  v.  Bariicr,  1  Hrod.  &  B.  9.     p.  284. 
Parker  v.  Gordon,  7  East,  385.     p.  96. 
Parker  v.  Ibbetson,  4  C.  B.  (n.  s.)  846. 

pp.  106,  394. 
Parker  v.  Palmer,  4  Barn.  &  Aid.  387. 

p.  308. 
Parkhurst  v.  Gloucester,  etc.,  Ins.  Co., 

100  Mass.  301.     p.  107. 
Parkin  v.  Radcliffe,  1  Bos.  &  Pul.  282. 

p.  36. 
Parkinson  o.  Collier,  Park  on  Ins.  416; 

1  Ph.  on  Ev.  539.     p.  414. 
Parkinson  v.  Lee,  2  East,  314.    pp.  187, 

308. 
Panons  v.  Martin,  11  Oray,  112.    p.  299. 


Parsons  v.  Miller,   16  Wend.   662.     pp. 

388,  435. 
Parrott  i-.Thacher,  9  Pick.  426.    pp.  85, 98. 
Partridge    v.  J'orsyth,  29  Al.n.  200.     pp. 

98,  279. 
Partridge  v.  Insurance  Co.,  16  Wall.  673. 

pp.  23,  296.  434,  445. 
Patten  v.  Patten,  To  Til.  446.     p.  330. 
Patterson  v.  Black,  6  Upper  Canada  Q.  B. 

481.     p.  221. 
Patterson  !'.  Franklin  Ins.  Co.,  22  Pittsb. 

L.  J.  201.     p.  45. 
Patterson  c.  Tash,  2  Stra.  1178.     pp.  286, 

290,291. 
Patton   y.  .Magrath,  Dudley  (S.  C),  169. 

p.  242. 
Patton  V.  State  Bank,  2  Nott  &  M.  464. 

p.  212. 
Patriotic     Bank    v.    Farmers'    Bank,    2 

Crunch  C.  Ct.  560.     p.  207. 
Paul  V.  Heed.  52  N.  H.  136.     p.  314. 
Pavey  v.  Burch,  3  Mo.  314.     p.  443. 
Paxtoii  V.  Courtnay,  2  Fost.  &  Fin.  131. 

p.  11. 
Paxton  V.  Popham,  9  East,  421.     p.  366. 
Pearson  v.  Grice,  8  Fla.  214.     p.  317. 
Peek  V.  North  Staffordshire,  etc.,  R.  Co., 

10  H.  L.  Cas.  473.     p.  408. 
Peers  u.  Davis,  29  Mo.  184.     p.  364. 
Peot  ('.  Chicago,  etc.,  R.  Co.,  20  Wis.  594. 

p.  72. 
Peisch  V.  Dickson,  1  Mason,  11.     p.  409. 
Pelly  V.  Royal  Exchange  Assur.  Co.,  1 

Burr.  341.     pp.  267,  414. 
Pelty  t).  Gale,  25  Ala.  473.    p.  279. 
Penn  t>.  Kearney,  21  La.  An.  21.     p.  284. 
Ponnell  v.  Alexander,  3  El.  &  Bl.  283. 

p.  341. 
Pennsylvania  Canal  Co.  v.  Betts,  1  W. 

N.  C.  328.     p.  364. 
Pennsylvania  Coal  Co.  v.  Sanderson  (Sup. 

Ct.  Pa.,  May,  IbMO).     pp.  77,  460. 
Pennsylvania  Co.  i'.  Hankey,  10  Cent.  L, 

J.  337.     p.  327. 
Penny,  In  re,  14  La.  An.  194.    p.  316. 
People  (The)  v.  Crockett,  9  Cal.  112.    p 

246. 
People  (The)  v.  Haines,  14  Wend.  546. 

p.  314. 
People  (The)  v.  Superior  Court  of  New 

York,  20  Wend.  063.    p.  200. 


iu 


,fm 


liv 


TABLE   OF   CASES   CITED. 


People's  Blink  v.  Bogart,   l(i  Hun,  270, 

p.  306. 
People's  Ins.  Co.  v.  Kuhn,  1  Cent.  L.  J. 

214,    p.  259, 
Peppin  V.  Shukespear,  6  Term  Kep.  748, 

p.  32. 
Pcrcival   r,  Maine   Mutual   Ins.  Co.,  83 

Me.  24'J.    p.  40G. 
Perkins  v.  Cutters'  Co.,  1   Selw.  N,  P, 

1144,     p,  463. 
Perkins  v.  Franklin  Bank,  21  Pick.  483. 

p.  460. 
Perkins  v.  Jordan,  36  Me.  23.    pp.  41, 

270. 
Perkins  v.  Younp;,  16  Gray,  389.    p.  364. 
Perley  v.  Balch,  23  Pick.  286.     p.  311. 
Perley  v.  Langley,  7  N.  H.  233.    p.  331. 
Perpetual  Ins.  Co.  v.  Goodfellow,  9  Mo. 

149.    p.  246. 
Perry  v.  Thompson,  98  Mass,  249.    p,  243. 
Peter  v.  Kendall,  6  Barn,  &  Cress.  703. 

p.  112, 
Peters  v.  Fowler,  41  Barb.  467.     p.  330. 
Peters  u.Gooch,  4  Blackf.  515.    p.  311. 
Peters  v.  Stavely,  15  L.  T.  (n.  s.)  151.    p. 

441. 
Petrie  v.  Wright,  6  Smed.  &  M.  647.    p. 

244. 
Petrochino  v.  Bott,  L.  R.  9  C.  P.  355.    p. 

226, 
Pfeil  V.  Kemper,  3  Wis.  318,    p,  100, 
Pliolps  V.  Quinn,  1  Bush,  375,     p,  311, 
Phelps  V.  Williamson,  5  Sandf,  578,    p. 

237. 
rhiladelphia   v.  Presbyterian  Board,  29 

Leg,  Int.  53.    p,  331. 
Philadelphia,  etc,  R.  Co.  i'.  Northam,  2 

Ben,  1.    p,  409. 
Philips  V.  Wheeler,  10  Texas,  536.     p.  32. 
Phillipi  V.  Govp,  4  Uob.  (Ln.)  316.     p,  308. 
Phillips  r,  Briard,  1  Hurl,  &  N.  21.    pp. 

409,  438, 
Phillips  r.  Headlum,2  Barn.  &  Ado1.380, 

p.  257. 
Phillips  V.  Innes,  4  CI,  &  Pin.  284.    p. 

460. 
Phillips  V.  Starr,  26  Iowa,  340.    p.  442. 
Phipps  v.  Millbury  Bank,  8  Meto.  79.    p. 

209. 
Phoenix  Ins.  Co.  v.  Taylor,  6  Minn.  492. 

p.  260. 


Phoenix  Mutual   In?.  Co.  v.  Batchen,  6 

Hradw.  Gtl.     p,  315. 
Pick.'rin.t,'  v.  Barkloy,  1  Sty,  132.    p.  125, 
PicUi'iini^  V.  Busk,  15  Et.st,  44,    pp,  238, 

284,  286,  291,  29l'. 
Pickering  y,  Demerritt,  100  Mass,  421, 

pp.  75,  298. 
Pickering  v.  Dowson,  4  Taun.  779.    p. 

188. 
Pidgeon  v.  Burslem,  3  Exch.  465.    p.  288. 
Pierce  v.  Butler,  14  Mass.  803.    pp.  53, 

206. 
Pierce  v.  United  States,  1  Ct.  of  CI.  290. 

p.  74. 
Pierce  v.  Whitney,  29  Me.  188.    p.  45. 
Pierce    v.  Woodward,  6  Pick.  206.    p, 

365. 
Pierpont  v.  Fowle,  2  Woodb.  &  M,  28. 

p,  46. 
Piper  V.  Chappell,  14  Mee,  &  W.  624, 

p.  17. 
Pincknoy  v.  Hagadorn,  1  Duer,  89.    p. 

292, 
Pindar  v.  Continental  Ins.  Co.,  38  N.  Y. 

364,    p,  259. 
Pindar  v.  Kings  County  Ins.  Co.,  36  N. 

Y.  648,    pp.  259,  260. 
Pindar  v.  Resolute  Ins.  Co.,  47  N.  Y.  114. 

p.  259. 
Pinney  v.  Wells,  10  Conn.  104.    p.  241. 
Pino  V.  Mercantile  Mutual  Ins,  Co.,  19 

La.  An.  214,    p,  266. 
Pintard  v.  Martin,  1  Smed.  &  M.  Ch.  126. 

p.  311. 
Piscataqua  Exchange  Bank  v.  Carter,  20 

N.  H.  246.    p.  208. 
Pitcher  •.  Barrows,  17  Pick.  861.    p.  282. 
Pitman  v.  Hooper,  3  Sumn.  66.    p,  237, 
Pitre  V.  OflFutt,  21  La.  An.  679.    pp.  45, 

242. 
Pitts  V.  Owen,  9  Wis.  152,     p.  314. 
Pittsburg  V.  O'Neil,  1  Pa.  St,  343,    pp. 

63,  98,  301. 
PitUburg  Ins.  Co.  v.  Dravo,  2  W.  N.  C. 

194.    p.  251, 
Pittsburg,  etc.,  R.  Co.  v.  Nash,  43  Ind, 

423.     p.  231. 
Plaice  V.  Allcock,  4  Fost.  &  Fin.  1074. 

p,  106, 
Planters'  Bank  v.  Parmeri',  etc..  Bank,  8 

Gill  &  J.  449.    p.  97. 


I 


I 


TABLE    OF   CASES   CITED. 


Iv 


"I 


Planters'    JJniik    v.  Markham,    6    How. 

(Miss.)  397.     p.  20'-.. 
Piatt  V.  Hibbiird,  7  Cow.  497.     p.  135. 
['layer  r.  Jones,  1  Vent.  21.     p.  4<)3. 
J'layer  v.  Vere,  T.  liayin.  288.     p.  4t;'{. 
Pleasants  w.  Pendleton,  6   liand.  473;  18 

Am.  Dec.  726.     p.  314. 
I'lummer  v.  Bentham,   1  Burr.  248.     p. 

17. 
Pocock  0.  Hendricks,  8  Gill  &  J.  421.     p. 

81. 
Pointdexter  v.  Cannon,  1  Dev.  Eq.  373. 

p.  3»)4. 
Polhemus  r.  Keiman,  45  Cal.  573.    p.  306. 
Polh-  nus  i\  Ueiman,  50  Cal.  438.     p.  451. 
Polk  V.  Hill,  2  Overt.  157.    p.  462. 
Pollen  V.  Le  Koy,  10  Bosw.  38;  30  N.  Y. 

540.    p.  375. 
PoUitt  »>.  Long,  58  Barb.  20.    p.  333. 
P:)ole  r.  Hill,  0  Meo.  &  W.  835.     p.  270. 
Pope  V.  Bank,  27  N.  Y.  131.     p.  205. 
Pope  V.  Nickerson,  3  Story,  465.    p.  238. 
Port  Carbon  Iron  Co.  v.  Groves,  68  Pa. 

St.  149.    p.  30). 
Porter  v.  Chicago,  etc.,  R.  Co.,  20  111.407. 

p.  225. 
Porter  o.  Hill,  114  Mass.  100.     p.  41. 
Porter  v.  .Judson,  1  Gray,  175.     p.  82. 
Porter  v.  McClure,  15  Wend.   187.     p. 

283. 
Porter  v.  Patterson,  15  Pa.  St.  230.     p. 

445. 
Portland  u.  Hill,  L,  R.  2  Eq.  765 ;  12  Jur. 
(N.  s.)  286;  15  Week.  Kep.  38.     p.  17. 
Post  ('.  Jones,  19  How.  150.     p.  238. 
Post  V.  Kimberly,  9  Johns.  470.    p.  284. 
Potter  ('.  Greene,  9  Gray,  309.     p.  284. 
Potter  r.  Morlnnd,  3  Cush.  384.    p.  287. 
Potter  y.  Moses,  1  R.  I.  430.     p.  283. 
Powell  V.  Bradlee,  9  Gill  «&  J.  220.     p. 

101. 
Powell  V.  Buck,  4  Strobh.  427.    p.  238. 
Powell  V.  Horton,  2  Bing.  N.  C.  668.     pp. 

309,  376. 
Powell  I).  Myers,  26  Wend.  696.    p.  186. 
Powell  V.  Regina,  2  Bro.  P.  C.  298.     p. 

464. 
Power  V.  Horton,  2  Hodge,  16.    p.  101. 
Power  V.  Kane,  5  Wis.  266.     pp.  45,  293. 
Powley  t).  Walker,  6  Term  Rep.  878.    p. 
267. 


Prather  v.  Ross,  17  Ind.  495.     p.  388. 
Prentiss  v.  lliiss,  16  Me.  :'.0.     365. 
Prescott  v.  Hubbell,  1  M.Cord,  94.     pp. 

70,  192. 
Preston   v.  Mcrceau,  2  W.  Black.  1249. 

p.  364. 
Preston    v.  Missouri,  etc.,   T.,ead  Co.,  61 

Mo.  45.     p.  246. 
Provost  V.  Gratz,  1  Pet  C.  Ct.  364.     p. 

294. 
Price  V.  Alexander,  2  G.  Greene,  427. 

p.  283. 
Price  r.  Earl  of  Torrington,  1  Salk.  285. 

p.  82. 
Price  V.  McConnico,    44   Ala.   627.    p. 

318. 
Price  V.  Mouat,  11  C.  B.  (n.  8.)  509.    p. 

397. 
Price  V.  Neale,  5  Burr.  1355.     p.  211. 
Price  V.  Page,  4  Ves.  679.     p.  102. 
Price  V.  Powell,  3  X.  Y.  322.     p.  225. 
Price  V.  White,  9  Ala.  663.    p.  98. 
Price  V.  VVilliami,  1  Mee.  &  W.  6.    p. 

270. 
Prickett  v.  Downer,  4  Vt.  21,     p.  225. 
Priestley   v.  Pratt,   L.  R.  2   Exch.   101. 

pp.  201,  315. 
Prismall  v.  Lovegrove,  0  L.  T.  (k.  8.)  829. 

pp.  202,  204. 
Promoter  Life  Ins.  Co.  i>.  Barrie,  5  Murr. 
13.5.     p.  267. 
I  Prossor  ».  Parks,  18  Cal.  47.     p.  390. 
;  Pugsley  1'.  Murray,  4  E.  D.  Smith,  24.5. 
I       pp.  295,  296. 

i  Pulsiler  v.  Hotchkiss,  12  Conn.  240.    p. 
I       311. 
Pultney  v.  Keymer,  3  Esp.  182.     p.  290. 
Pursell  w.  McQueen,  9  Ala.  380.     p.  278. 
Putnam  v.  Tillotson,  13   Mete.    617.     p. 

314. 
Pyle  V.  Pennock,  2  Watta  &  S.  390.    p. 
271. 

Quebec,  etc.,  R.  Co.  v.  Quinn,  12  Moo.  P. 

C.  C.  265.     p.  289. 
Queen  u.  Inhabitants,  6  Q.  B.  803.     pp.  54, 

394. 
Quoroz  I'.  Truman,  3  Barn.  &  Cress.  342. 

p.  290. 
Quiggin  V.  Dutt'.  1  Mee.  &  W.  174.    p. 

225. 


m 


i      t  '  i  ■  : 


; !  :1^ 


Ivi 


lAllLE   OF    CASES    CITED. 


I' 


II  '^  i 


I 


i! 


I- 


(.^uiiie  «,  t^uiiie,  'J  Sincd.  «k  M.  155.     p. 
283. 

Rftbori;  e.  Bank  of  Columbia,  1  Har.  & 

G.  281      p.  207, 
Unco  M.  WMrd.  4  Kl.  &  HI.  702.     p.  3.S1. 
KatiTt  0.  Scros^gins,  40  Ind.  195.     p.  435. 
Hatfertv  v.  N«w  Brunswick   Ins.  Co.,  3 

Hitrr.  (N.  .I.)480.     p.  259. 
Uailroad  Co.  o.  Smith,  21  Wall.  262.    p. 

375. 
Raisin  v.  Clark,  41  Md.  158;  20  Am.  Hep. 

CtC.     pp.  70.  4:n.  4'! '..  470,  485. 
Raitt  i:  Mitchell,  4  Camp.  145.     p.  241. 
Randall  t>.  Kehlor,  «0  Me.  87.     pp.  284, 

308. 
Randall  i>.  Rotch,  12  Pick.  107.     p.  441. 
Randall  v.  Smith,  63  Me.  105.    pp.  72, 

104. 
Randle  v.  The  State,  49  Ala.  14.     p.  283. 
Randolph  v.  Holden,  44  Iowa,  327.     p. 

441. 
Randolph  v.  Ware,  3  Cranch,   503.    p. 

291. 
Rankin  v.  American  InB.  Co.,  1  Hall,  619. 

pp.  55.  73,  441. 
Rann  v.  Home  Ins.  Co.,  69  N.  Y.  387.    p. 

262. 
Ransom  >:.  Mack,  2  Hill,  587.     p.  20!. 
Rapp  I.-.  Grayi^on,  2  Blackf.  180.     p.  28(). 
Kapp  V.  Palmer,  3  Watts,  178.     pp.  238, 

465. 
Rapp  0.  Sampson,  16  Grav,  398.     pp.  295, 

2'M\. 
Rawlins  r.  Riokards,  2S  Reav.  370.     p.  82. 
Rawiinson  i).  Clarke,  15  Mee.  &  W.  292. 

p.  283. 
Rav.'ls  v.  American,  etc.,  Ins.  Co.,  27  N. 

Y.  282.     p.  267. 
Rawson   v.  Holland,  69  N.  Y.  611.     p. 

242. 
Ravburn  v.  Day,  '27  111.  46.    p.  52. 
Raymond  r.  Tsham,  8  Vt.  263.     p.  317. 
Rnab  i:  McAllister,  8  Wend.  109.     pp. 

52,  818. 
Read  I).  Rann,  10  Barn.  &  Cress.  438.    p. 

298. 
Reade   ■.  Sweetzer,  6  Abb.  Pr.  (n.  s.)  9. 

p.  ':77. 

Reading  v.  Menham,  1  Moo.  &  R.  234. 
p.  452. 


Reber  r.  .Machine  Co.,  12  Ohio  St.  175. 

p.  284. 
RiH^d    II.  Richardson,  98  Mass.  214.     pp. 

71,  281,  466. 
Roeside  (The),  2  Sumn.  567.     pp.  21,  23, 

186,  436,  457. 
Refining,  etc.,  Co.  v.  Miller,  7  Phila.  97. 

)).  314. 
Regina   v.  Halo,   1    Per.  &  Dav.  293;  9 

Ad.  &  E.  339.     p.  17. 
Reid  V.  Draper,  (i  Hurl.  &  N.  813.    p.  301. 
Reid  V.  Rensselaer  Glass  Factory,  3  Cow. 

887;  5  Cow.  587.     pp.  200,  817. 
Relief  Fire  Ins.  Co.  v.  Shaw,  4  Otto,  674. 

p.  82. 
Heiny  v.  Duffee,  4  Ala.  865.     p.  316. 
Renard  v.  Turner,  42  Ala.  117.     p.  292. 
Rennell  u.  Kimball,  5  Allen,  356.     p.  48. 
Renner  v.  Bank  of  Columbia,     pp.  53, 

llfi,  148,  193,  204. 
Rensselaer  Glass  Factory  v.  Reid,  6  Cow. 

611.     p.  317. 
Rex  V.  Aire,  etc.,  Nav.  Co.,  2  Term  Rep. 

664.     p.  462. 
Rex  V.  Atwood,  1   Nev.  &  M.  286.     p. 

463. 
Rex   w.  Bigg,  3  P.  Wms.  419.    pp.  147, 

244. 
Rex  y.  Chester,  1  Mau.  &  Sel.  101.     p. 

464. 
Rex  e.  Davie,  6  Ad.  &  E.  374.     p.  463. 
Rex  V.  Ecclesfleld,  1   Barn.  &  Aid.  360. 

p.  31. 
Rex  1).  Feversham,  8  Term  Rep.  356.    p. 

463. 
Rex  0.  Gordon,  1  Barn.  &  Aid.  524.    p. 

68. 
Rex  y.  Grant,  1  Barn.  &  Adol.  111.    p. 

463. 
Rex  V.  Grosvenor,  1  Wils.  18.    p.  463. 
Rex  V.  Humphrey,  1   McCl.  &  Y.   191. 

p.  241. 
Rex  V.  Johns,  Lofft,  76.     pp.  26,  463. 
Rex  V.  JoUiffe,   2   Dow.    &   Ry.  240;  2 

Barn.  &  Cress.  54.    pp.  17,  26. 
Rex  0.  Laindon,  8  Term  Rep.  379.    p. 

3C4. 
Rex  t>.  Lee,  12  Modern,  514.     p.  289. 
Rex  V.  Mashiter,  6  Ad.  &  E.  153.    p.  463. 
Rex  V.  Metcalf,  2  Stark.  N.  P.  249.     p. 

889. 


TAItl.i:    OF    CAiSES    CITED. 


Ivii 


463. 

r.  it)i. 

|4G8. 
1240;  2 

k79.     p. 


Hex  0.  Miller,  6  Term  Rep.  280.    p.  AW,- 
Rex  V.  Salivay,  9  Barn.  &  Cress.  424.     p. 

■tr,4. 

Kex  c.  Scott,  G  Term  Kep.  604.     p.  462. 
llux  0.  Spencer,  3  Burr.  l!s;39.     p  4(;3. 
liix  V.  Tornlyn,  Cases  temp.  Hardw.  310. 

p.  463. 
Ilex  V.  Westwood,  4  Barn.  &  Cress.  786. 

p.  463. 
Reynolds  v.  Continental  Ins.  Co.,  36  Mich,  i 
i;Jl.     p.  107.  I 

Reynolds  i-.  Jourdan,  6  Cal.  108.     p.  393.  | 
Ilhea  I-.  Puryear,  26  Ark.  344.     p.  294. 
Rhoades   r.  Castner,   12  Allen,  130.     p. 

378. 
Rice  V.  Barrett,  116  Mass.  314.     p.  284. 
Rice  1-.  Johain,  4  Abb.  App.  Dec.  37.     p. 

316. 
Rice  V.  AVood,  113  Mass.  133.     p.  294. 
Rich  y.  Johnson,  61  111.  246.     p.  286, 
Rich  V.  Kncclaiid,  Cio.  Jac.  330.     p.  136. 
Rich  V.  Muiiroe,  14  Barb.  602.     p.  290. 
Rich  1).  Ryder,  105  .Mass.  306.     p.  282. 
Richardson  v.  Capes,  4  Dow.  &  liy.  612. 

p.  17. 
Richardson  v.  Comstock,  21  Ark.  69.     p. 

364. 
Richardson  f.  Copeland,  6  Gray,  636.     p. 

272. 
Richardson  v.  Emery,  23  N.  H.  220.     p. 

84. 
Richardson  v.  Goddard,  23  How.  44.     pp. 

40,  230. 
Richardson  v.  Walker,  2  Barn.  &  Cress. 

839.    p.  107. 
Richardson  v.  Walker,  4  Dow.  &  Ry.  498. 

p.  17. 
Richmond  v.  Smith,  8  Barn.  &  Cress.  9. 

p.  453. 
Rickard  c.  Michigan,  etc.,  R.  Co.,  20  111. 

404.     p.  22o. 
Rickford  v.  Ridge,  2  Camp.  537.    pp.  41, 

209. 
Ricks  V.  Dillahunty,  8  Port.  140.     p.  308. 
Ridgway  v.  Bank,  12  Serg.  &  R.  256.    p. 

82. 
Righter  v.  Roller,  31  Ark.  170.     p.  311. 
Righton  V.  Blake,  1  Brev.  159.     p.  317. 
Riley  v.  Home,  5  Bing.  217.    p.  136. 
Riiulskoff  ('.  Barrett,  14  Iowa,  101.    pp. 
44,  46,  214. 


386. 
404. 
pp. 

pp. 


itiploy  II.  Crookov,  47  Me.  370.     p.  443. 
Rivers  v.  Burbank,  13  Nev.  398.     p.  331. 
Roach  r.  Gray.  16  Cal.  383.     p.  390. 
Uobbins  v.  Harrison,  31  Ala.  160.     p.  :!1">. 
Roberts  u.    Baker,  1   Cronip.  &  M.  808. 

p.  272. 
Roberts  v.  Jackson,  2  Stark.  X.  P.  735. 

p.  293. 
Roberts  v.  Short,  1  Toxas,  373.     p. 
Robertson  v.  Clarke,  1  Bing.  445.    p, 
Robertson  v.  French,  4   East,  135. 

249,  33(i,  403. 
Robertson  r.  .lackson,  2  C.  B.  412. 

.369.409,  411. 
Robertson  v.  Money,  Rv-an  &  M.  75.     p. 

104. 
Robertson  v.  Wait,  8  Excli.  209.     p.  409. 
Robie  V.  Sedgwick,  35  Burb.  319.     p.  463. 
Robinson  v.  Chittenden,  7  Hun,  13.3.    p. 

100. 
Robinson  ».  Dunmore,  2  Bos.  &Pul.  416. 

p.  221. 
Robinson  v.  Fiske,  25  Me.  401.     p.  369. 
Robinson  v.   Harman,   1  Exch.   855.    p. 

.'!70. 
Robinson  v.   MoUctt,  L.  R.  5  C.  P.  646; 
L.  R.  7  C.  P.  84;  L.  R.  7  H.  L.  Cas. 
802.     pp.  288,  299. 
Robinson  v.  Robinson,  1  Do  G.  M.  &  G. 

266.     p.  294. 
Robinson  v.  United  States,  13  Wall.  363. 

pp.  98,  316,  362.  372. 
Rodman  v.  Hoops,  1  Dall.  85.     p.  84. 
Rodriguez  v.  Hotlcrnan,  6  Johns.  Ch.  429. 

p.  290. 
Roe  V.  Lees,  W.  Black,  1171.     p.  173. 
Rogers  v.  Allen,  47  N.  H.  529.    p.  464. 
Rogers  v.  Boehm,  2  Esp.  70.'.     p.  294. 
Rogers  v,  Brenton,  10  (i.  B.  26.     p.  63. 
Rogers  c.  Colt,  21  N.  .1.  L.  704.     p.  364. 
Rogers  v.  Forrester,  2  Camp.  485.    p.  227. 
Rogers  v.  Mechanics'  Ins.  Co.,  1  Story, 

606.     pp.  32,  40. 
Rogers  v.  Railroad  Co.,  2  Lans.  269.     p. 

215. 
Rogers  v.  Woodruff,  30  Ohio  St.  682.     p. 

460. 
Rosenback  v.  Salt  Springs  National  Bank, 

53  Barb.  495.     p.  247. 
Rose  V.  Beattie,  2   Nott  &  M.  688.    pp. 
308,  309. 


A 


Iviii 


TABLE    OF    CASES    CITED. 


;    i 


I 


llosenstock  i\  Ti>riney,  32  Md.  169,     pp. 

284,  21)8. 
Resetter  v.  Ctthlmiin,  8  Exch.  201.    p.  111. 
Rosewarne  r.  Billing,  !.'>  C.  15.  (\.  s.)  310. 

p.  288. 
lioss  D.  Drinker,  2  Hivll,  415.     p.  2S;{. 
RolhwoU  V.  Cook.  1  Bos.  &  Pul.  172.    p. 

2oG. 
Rowclifte  V.  Leigh,  L.  R.  6  Ch.  Div.  256. 

p.  294. 
Rowland   o.  Burton,  2  Harr.  (Del.)  288. 

pp.  81,  83. 
Rowland  v.  Hanns,  2  B.  Mon.  131.     p. 

270. 
Roxburgh  t».  Robertson,  2  Bli.  156.    p. 

273. 
Royal  British  Bank,  In  re,  26  L.  J.  (Ch.) 

542.    p.  24(). 
Ruan  V.  Giirdner,   1   Wash.  C.  Ct.  14.j. 

pp.  100,  125. 
Rugg  V.  Minnett,  11  East,  210.     p.  315. 
Ruiz  D.Norton,  4  Cal.  JiSO,     p.  364. 
Rnpp  V.  Sampson,  16  Gray,  398.     p.  108. 
Kiiiie  0.  Mutual,  etc.,  Ins.  Co.,  26  Barb. 

557.     p.  266. 
Rush  forth  v.  Uadfield,  6  East,  522.     pp. 

99,  135,  143,  193,  238,  841. 
Rurisell  c.  Hankey,  6  Term  Rep.  12.     pp. 

210,  284. 
Russell  V.  Minor,  22  Wend.  659.     p.  314. 
Russell  Man.  Co.  v.  New  Haven  Steam- 
boat Co.,  50  N.  Y.  121,     pp.  226,  230. 
Ilussian  Steam  Nav.  Co.  c.  Silva,  13  C.  B. 

(n.  8.)  610.     p,  410. 
Rust  V.  Low,  6  Mass.  90.     p.  27. 
llutter  V.  Blako,  2  Hayes  &  J.  365.    p. 

311. 
]{yder  v.  Wooley,  10  Week.  Rep.   294. 

p.  379, 
Ryerss  v.  Wheeler,  22  Wend.  148.     pp. 
361,  400. 

Sadler  v.  Dixon,  8  Mee.  &  W,  900.     p. 

257. 
Suftbid  V.  Wyckoff,  4  Hill,  442.    p.  245. 
Sager  v.  Portsmouth,  etc.,  R.  Co.,  31  Me. 

228.    pp.  229,  437. 
Sager  v.  Tupper,  38  Mich.  258.     p,  378. 
Saint  V.  Smith,  1  Coldw.  51.    p.  46. 
St.  John  V.  American  Fire  Ins.  Co.,  1 

Duer,  371 ;  11  N.  Y.  616.    pp.  161, 162. 


St.  .John  V.  Kidd,  26  Cal.  'JO:?.     p.  390. 
St.  John   V.  Van   Sajitvoord,  25  Wend. 

660.     pp.  135,  136,  liil,  140.  141. 
St.  Nicholas  Ins.  Co.  r.  Merchants'  Mu- 
tual Ins.  Co.,  5  Bosw.  2:!S.     p.  440. 
Salisbury  v.  Stainer,  19   Wend.  158.     p. 

427. 
Salisbury  v.  Townson,  1  Arnould  on  Ids. 

55.    p.  42. 
Salisbury  (Marquis  of)  v.  Gladstone,  9  H. 

L,  Cas.  692.     pp,  17,  31. 
Salmon  Palls   Man.  Co.  v.  Goddard,  14 

How.  446.     pp.  315,  375. 
Salter  v.  Ham,  31  N.  Y.  321.    p,  288. 
Salters'  Co.  v.  Jay,  2  Gal.  &  Dav.  414. 

p.  17. 
Salt  Springs  National   Bank  v.  Burton, 

58  N.  Y.  430.    p.  96. 
Salvador  v.  Hopkins,  3  Burr.  1707.    pp. 

254.  257. 
Sammis  i;.  Clark,  13  111.  544.     p.  817. 
Sampson  v.  Gazzam,  6  Port.  123.    pp. 

180,  436. 
Sampson  v.  Hand,  6  Whart.  324.     p.  824. 
San  Antonio  v.  Ferris,  9  Texas,  69.     p. 

244. 
Sanborn  i'.  Firemen's  Ins.  Co.,  16  Gray, 

488.     pp.  81,  82,  245. 
Sanders  v.  Jameson,  2  Car.  &  Kir.  667. 

pp.  11,  313. 
Sanderson    v.    Columbian    Ins.    Co.,    2 

Crunch  C.  Ct.  218.     p.  257. 
Saiidford  v.  Raikes,  7  Me.  646.    p.  368. 
Sandilands  v.  Marsh,  2  Barn.  &  Aid.  678. 

p.  280. 
Sands  i-.  Taylor,  6  Johns.  359.    p.  808. 
Sanford  v.  Mechanics',  etc.,  Ins.  Co.,  12 

Cush.  541.     p.  262. 
Sanford  v.  Rawlings,  43  111.  92.     p.  371. 
San  Francisco  Gas  Co.  v.  San  Francisco, 

9  Cal.  471,     p,  245. 
Sanson  v.  Madison,  15  Wis.  144.     p.  375. 
Satterlee  v.  Groat,  1  Wend.  272.     p.  215. 
Saunders  i;.  Clark,  106  Mass.  331.    p.  44. 
Savill  V.  Blanchard,  4  Esp.  53;    Doug. 

519.     p.  195. 
Savings  Bank  v.  Davis,  8  Conn.  202.    p. 

244. 
Savings  Bank  v.  Ward.  100  U.  S.  168.     p. 

435. 
Sawtelle  v.  Drew,  122  Maas.  228.    p.  270. 


I 


5. J 


.-is 
1 


■^ 


■    :l 


TABLE    OF    CASKS    CITED. 


lix 


363. 
Id.  678. 

308. 
3o.,  12 


«; 

-'.* 


Snwyer  o.  Baldwin.  11   Pick.  492.     p.  Oti. 
Scales  V.  Key,  11  Ad.  &  E.  819.     pp.  2(3, 

27. 
Scaramanga  v.  Stamp,  28  Week.  Rep. 

691.    p.  264. 
Schcnck  v.  Griffin,  38  N.  J.  L,  462.     p. 

462. 
SchieflFelin  v.  Harvey,  Anth.  76.    pp.  221, 

465. 
Schierhold  v.  North  Beach,  etc.,  R  Co., 

4  Cal.  447.     p.  381. 
Schlessinger  v.  Dickinson,  6  Allen,  47. 

p.  41. 
Schmaltz  v.  Avery,  16  Q.  B.  656.    p.  845. 
Schneider  v.  Heath,  8   Camp.   506.     p. 

875. 
Schnitzer  V.  Oriental  Print -Works,  114 

Mass.  123.     p.  303. 
Scholes  1).  Ackerliind,  15  111.  474.     p.  225. 
Schoneman  v.  Fegley,   14  Pa.  St  876. 

pp.  78,  79. 
Schrieber  v.  Horsley,  11  Jur.  (n.  s.)  675. 

p.  381. 
Schuchardt  o.  Allen,    1   Wall.  359.    p. 

284. 
Schultz  V.  Liedeman,  14  C.  B.  88.     p.  409. 
Schwartz  v.  Oermania  Life  Ins.  Co.,  18 

Minn.  448.     p.  55. 
Schwartze  v.  Yearly,  81  Md.  270.    pp. 

295,  433. 
Scott  V.  Blood,  16  Me.  192.    p.  282. 
Scott  V.  Bourdillion,  2  Bos.  &  Pul.  N.  R. 

214.    p.  401. 
Scott  V,  Irving,  1  Barn.  &  Adol.  606.    pp. 

48,  251,  252,  292,  293. 
Scott  V.  Ocean  Bank,  23  N.  Y.  289.    p. 

210. 
Scott  V.  Saffold,  37  Ga.  384.     p.  46. 
Scott  V.  Whitney,  41  Wis.  504.     p.  45. 
Scribner  o.  Collar,  40  Mich.  378 ;  8  Cent 

L.  J.  205.     p.  295. 
Scribner  v.  Hollis,  48  N.  H.  30.     p.  465. 
Scudder  v.  Bradbury,  106  Mass.  422.    pp. 

806,  371. 
Seager  v.  Sligerland,  2  Caines,  219.    pp. 

9,59. 
Searle  r.  Keeves,  2  Esp.  698.    p.  193. 
Searson  v.  Heyward,  1  Spears,  249.    p. 

45. 
Seay  v.  Walton,  6  T.  B.  Men.  368.    p. 
388. 


Seceomb  v.  Proviiiciiil  Ins.  Co.,  10  Allfii, 

805.     pp.  68,  489. 
Security    Bank  v.   National   Bank,  67  N 

Y.  458.    p.  212. 
Seixas  v.  Wood,  2  Caines,  48.     p.  306. 
Selby  V.  Robinson,  2  Term  Rep.  758.     p. 

3L 
Selleok  n.  French,  1  Conn.  32.     p.  317. 
Selway  v.  Hollo  way,  1  Ld.  Raym.  46.     p 

215. 
Senac  v.  Pritchard,  4  La.  160.     p.  96. 
Senior  v.  Armitage,  Holt  N.  P.  60.     p. 

274. 
Sennett  v.  Pierce,  1  Mart  (n.  b.)  192.     p. 

278. 
Serjent  v.  Read,  1    Wils.  91.     p.  65. 
Settle  V.  St.  Louis,  etc.,  Ins.  Co.,  7  Mo. 

879.     pp.  162,  163,  ltJ4,  168. 
Sevey's  Case,  6  Me.  118.    p,  888. 
Sewall  V.  Allen,  6  Wend.  831.     pp.  135, 

136,  14.3,  215. 
Sewall  V.  Gibbs,  1  Hall,  602.     p.  311, 
Sewell  r.  Corp,  1  Car.  &  P.  392.    pp.  2. 

28,  33,  53,  98,  278. 
Seymour  v.  Osborne,  11  Wall.  616.     p. 

368. 
Seymour  v.  Page,  83  Conn.  66.    p.  388. 
Shackford  v,  Newington,  46  N.  H.  415. 

p.  365. 
Shackleford  v.  New  Orleans,  etc.,  R.  Co.. 

37  Miss.  202.     p.  100. 
Shakespear  t».  Peppin,  6  Term  Rep.  241. 

p.  32. 
Sharman  v.  Brandt  L.  R.  6  Q.  B.  720. 

p.  :101. 
Shaw  V.  Badger,  12  Serg.  &  R.  275.     p. 

312. 
Shaw  V.  Ferguson,  11  Cent  L.  J.  106.     p. 

27. 
Shaw  V.  Mitchell,  2  Mete.  65.     p.  282. 
Shaw  V.  Neale,  6  H.   L.  Cas.    581.     p. 

473. 
Shelburne  Falls  National  Bank  v.  Towns- 
ley,  102  Mass.  177.     p.  206. 
Sheldon  v.  Benham,  4  Hill,  129.     p.  206. 
Sheldon  v.  Fairfax,  21  Vt  102.     p.  244. 
Sheldon   i;.  Robinson,  7  N.  H.   157.    p. 

216. 
Shelton  tj.  Merchants'  Despatch  Transp. 

Co.,  36  N.  Y.  S.  C.  (J.  &  S.)  527.    p. 

243. 


I. 


ra 


i 


1 

!  \ ' 

ft   ■     ,    !' 

M 


1 ; 


1x 


TAI'.LK    OF    CASES    CITED. 


Slioiik  r.  I'ropellor  Co.,  GO  Pa.  St.  109. 

p.  225. 
Sh>'phfT(!  V.  K:iin,  '>  Bnrn.  &  Adol.  200. 

p.  375. 
Shoppiird   .;.  ITnll,  3  Barn.  &  Adol.  433. 

p.  17. 
Sheror  v.  En.ston  Bank,  33  Pa.  St.  UH.     p. 

316. 
Sherrod  v.  Langdon,  21   Iowa,  518.     p. 

2S4. 
Shnrwin  v.   Bugbee,  10  Vl.  439.     p.  462. 
Sherwood  n.  Sissa,  5  Nev.  349.     p.  82. 
Shewel  r.  Givan,  2  Bliickf.  312.     p.  317. 
Shields  v.  Petlce,  2  Saiidf.  202.     p.  HI  1. 
Shimmel    v.  Erie    R.  Co.,  5   Daly,  390. 

p.  20o. 
Shindler«.  Houston,  1  Doiiio,  51.     p.  314. 
Shipley  v.  Kynier,  1  .Mini.  &  Sel.  484. 

p.  290. 
Shipman  v.  The  State,  44  Wis.  458.     p. 

317. 
Shore  v.  "Wilson,  9  CI.  &  Fin.  355.     pp. 

368,  398. 

Shove  V.  Wiley,  18  Pick.  658.     p.  81. 

Shrt'svsbury  v.  Hart,  1  Car.  &  P.  113.     p. 

41)3. 
Shugart  v.  Moore,  78  Pa.  St.  469.     p.  365. 

Shuttleworth   v.  Le  Fleming,  19  C.  B. 

(n.s.)087.     p.  27,  331. 
Sif,'sworth  v.  Mcliityre,  18   111.  126.     p. 

100. 
Sinikins  v.  Norwich,  etc.,  Steamboat  Co., 

11  Cush.  102.     p.  230. 
Simmons  v.  Law,  3  Keyes,  219.     pp.  429, 

435. 
Simpson  v.  Kimberlin,  12  Kan.  579.     p. 

304. 
Simpson  v.  Margiston,  11   Q.  B.  32.     p. 

878. 
Simpson  v.  W' ells,  L.  R.  7  Q,  B.  214.     p. 

26. 
Sims  V.  State  Ins.  Co.,  47  Mo.  54.    pp. 

258,  406. 
Sinclair  v.  Wood,  3  Cal.  98.     p.  2S2. 
Singleton  v.  Hilliard,  1  Strobh.  203.     p. 

82. 
Sipperly  v.  Stewart,  50  Barb.  02.     p.  43. 
Sleght  V.  Hartshorne,  2  Johns.  532.    p. 

45. 
Steght  V.  Rhinelander,  1  Johns.  195;  2 

Johns.  532.    pp.  401,  408. 


Slim  V.  (Jrciil  Northern  R.  Co.,  14  ('.  B. 

647.     p.  215. 
Smalley  v.  Heiidricksoii,  29  N.  ,T.  L.  371. 

p.  311. 
Smart  v.  Hyde,  8    .Mee.  &  W.  72:<.    p. 

311. 
Smedos  i>.  Bank  of  Uticii.  20  .lohns.  372; 

3  Cow.  362.     p.  209. 
Smetz  V.  Kennedy,  Kiloy,  218.     pp.  297, 

466. 
Smith  V.  Birmingham  (ias-Light  Co.,  3 

Nev.  &  M.  771.     p.  244. 
Smith  »'.  Boutcher,  1  Cur.  &  Kir. 573.     p. 

289. 
Smith   V.    Cartwright,   6  Eich.  927.    p. 

214. 
Smith  V.  Cheshire,  13  Gray,  308.     p.  464. 
Smith  0.  Chester,  1  Diirnf.  &  E.  655.    p. 

211. 
Smitli  B.  Clark,  12  Iowa,  .32.     p.  81. 
Smith  V.  Clayton,  29   N.  J.  L.  357.     p. 

368. 
Smith  O.Collins,  115  .Mass.  388.     p.  282. 
Smith  V.  Cologan,  2  Term  Rep.  188.     p. 

2«5. 
Smith  V.  Dennie,  6  Pick.  262.     p.  314. 
Smith  0.  Floyd,  18  Barb.  523.     p.  331. 
Smith  V.  Gibbs,  44  N.  H.  385.     p.  46. 
Smith  V.  Jeffryes,  15  Mee.  &  W.  561.    p. 

451. 
Smith  V.  Kennedy,  13  Hun,  9.    p.  330. 
Smith  V.  Lascelles,  6  Term  Rep.  189.     p. 

201. 
Smith  V.  Lawrence,  26  Conn.  476.     p.  232. 
Smith  V.  Lindo,  5  C.  B.  (a.  s.)  687,     pp. 

287,  288. 
Smith  V.  Lynes,  3  Sandf.  203 ;  5  N.  Y.  42. 

p.  314. 
Smith  V.  Marrable,  11  Mee.  &  W.  6.     p. 

370. 
Smitli  r.  Mercer,  6  Taiin.  76.     p.  211. 
Smith  V.  Miller.  -52  N.  V.  645;  42  N.  Y. 

171.     p.  324. 
Smith  V.  Mobile  Nav.,  etc.,  Co.,  30  Ala. 

167.     p.  439. 
Smith  r.  Nashua,  etc.,  R.  Co.,  27  N.H.Stf. 

p.  225. 
Smith  V.  Odlin,  4  Yeates,  468.    p.  82. 
Smith  V.  Rice,  56  Ala.  417.     pp.  30,  98. 
Smith  V.  Smith,  4  Harr.  (Del.)  682.    p. 

84. 


"1 


TABLE    or   CASES    CITED. 


Ixi 


.Y.42. 
5.    p. 

1211. 

b  N.  Y. 

1,30  Ala. 
.  H.  8tt. 


Smith  V.  Smith,  W  Vt.  l.'?9.     p.  311. 
Smith  r.Sublett.  '-N  Texas.  I'l:?.     p.  288. 
Smith  I'.  Trnoy,  36  N.  V.  TX     p.  2H4. 
Smith  !v  Tyson,  1  Per.  &  Diiv.  :;07.     pp. 

(17,  104. 
Smith  r.  Walton,  8  Bins'.  2:W.     p.  270. 
Smith  r.  Whiting,  12  Mass.  ti.    pp.  5,3.  20.\ 

207. 
Smith  V.  Wilson,  3  Bnrn.  &   Adol.  728. 

pp.271,  335,  .308,  37tl. 
Smith  V.  Wrii^ht,  1  Cainos,  43.     pp.  8,  30, 

<y,,  r_>2.  19,3,  28,3. 
Sinithwick  V.  Kllison,  2  Ired.  L.  326.    p. 

•y<i. 

Smvlh  w.  Ward,  4t)  Iowa,  339.    p.  442. 
Slice  shy  V.  Lancashire,  ete.,  li.  Co.,  L.  K.  9 

(^  b!  263.     p.  2J1. 
Siu'lling  V.  Hall,  107  Mass.  134.     p.  435. 
Snow  V.  Parsons,  28  Vt.  45'.>.     p.  333. 
Siiowden  c.  Warder,  3  Kawlo,  101.     pp. 

(1.1,  :,07,  4:!(). 
Society  i--.  llaight,  1  N.  J.  Eq.  393.     p. 

269. 
Solly  V.  Hinde,  2  Cromp.  &  M.  616.     p. 

Solly   r.  Kathbone,  2  Man.  &  Sol.  299. 

1  p.  288,  290. 
Suloiium  V.  Cominii.sioiioi'9,  41  Ga.  157. 

p.  333. 
Somcrby  v.  Tiippan,  1  Wright,  570. 

38, 
Sotilichos  V.  Kemp,  3  Exch.  105.     p.  369. 
Souter  I'.  Drake,  5  Barn.  &  Adol.  992. 

p.  370. 
Southern   Express   Co.  v.  Armstead,    ',0 

Ala.  :150.     p.  232. 
Southern  Express  Co.  v.  Everett,  37  Ga. 

tl8S.     p.  233. 
Southwell  V.  Bowdieh,  L.  R.  1  C.  P.  Div. 

100.     p.  301. 
Scutli-Western  Freight  Co.  v.  Plant,  45 

Mo.  517.    p.  315. 
Soiith-Western  Freight  and  Cotton-Press 

Co.   0.  Staiu.rJ,  44  Mo.  71.     pp.   104, 

314.  466. 
Sculhwick  V.  Southwick,  49  N.  Y.  510; 

9  .\bb.   Pr.  (M.S.)  109.     p.  330. 
Soulier    w.  Kellerman,  18  Mo.  609.     p. 

37t). 
Soworby  v.  Coleman,  L.  K.  2  Exch.  96; 

36L.\l.  (Kxoh.)  57.     p.  67. 


Spaids  0.  Barrett.  57  III.  289.     p.  ,365. 
Spartaii   i\    Heneike,  10  C.   li.  212.     pp. 

378,  379,  381.  430. 
Spauldin;;-  e.  Lowell,  23  Pick.  71.     pp.41, 

464. 
Spear  v.  Hart,  3  Kobt.  420.     p.  451. 
Spear  u.  LadJ,  11  Mass. ',(4.     p.  146. 
Spear  v.  Newall.  23  Vt.  150.     p.  297. 
Spears  v.  Ward,  48  Ind.  .541.     p.  435. 
Spencer  v.    Ballon,    18   N.    Y.  327.     p. 

209. 
Spencer  o.  Billin;;.  3  Camp.  310.     p.  284. 
Spicer  v.  Cooper.  1  Q    B.  424.     p.  373. 
Spicer  ».  Lea.  11  Ka-i,  31.!.     p.  337. 
Spnigue  V.  Spraguo,  ;iO  Vt.  4h:!.     p.  317. 
Spring  V.   Cockburn,  19  Upper  Cana<la 

C.  P.  63.     p.  374. 
Sprini^stein   o.  Sampson,    32  N.    Y.  706. 

p.  ;i88. 
Springwell  v.  Allen,  Aleyn,  91 ;  2  F      , 

44S.    p.  306. 
Sprout  V.  Donnell,  26  Me.  185.     p.  221. 
Sprong  «.  Railroad  Co.,  60  Barb.  30.     p. 

327. 
Statibrd  v.  Gardner,  L.  II.  7  C.  P.  242. 

pp.  78,  267,  272. 
Stagg  r.   Insurance  Co.,    10    Wall.    589. 

pj).  29  1,  445. 
Stainlon  u.  Jones,  2  Selw.  N.  P.  1225.    p. 

17. 
Stamford  Bank  v.  Ferris,  17  Conn.  272. 

pp.  2').'.,  206. 
Standard  Oil  Co.  v.  Triumph  Ins.  Co.,  3 


Cent.  L.  J.  602. 


158. 


Stanton  v.  Natchez  Ins.  Co.,  6  How.  744. 

p.  251. 
SlMiitt)n  f.  Small,  3  Sundf.  230.     p.  314. 
Siaplcton  0.  Conway,  3  Atk.  727.     p.  11 1. 
Star  (ilass  Co.  u.  Morey,  108  Mass.  570. 

p.  111. 
Star  of  Hope  (The),  17  Wall.  651.    pp. 

221,  222,  22;». 
Startup  V.  Doderidge,  2  Ld.  Raym.  1158; 

2  Salk.  6.57;  1  Modern,  60.     pp.  172, 

17.3. 
State  (The)  v.  Butner,  76  N.  C.  118.    j).  61. 
Slate  (The)  v.  Jersey  City,  4   Zab.  108. 

p.  462. 
State  (The)  v.  Lewis,  Add.  279.     p.  62. 
State  (The)  v.  Lowell,  15  Ark.  664.     p. 

333. 


Ixtl 


TABLE   OF    GASES    CITED. 


I  I 

I    If  ii  11 


!  I*' 
I 


i      (:! 


SI 


h 


State  (Tlie)  v.  McClay,  1  Harr.  (Del.)  520. 

p.  2G9. 
State  (The)  v.  Ramsey,  78  N.  C.  448.    p. 

338. 
Stato  Bank  v.  Aersten,  4  111.  135.     p.  212. 
State  Bank   v.  Bank,  41   Barb.  343.     p. 

U09. 
State  Bank  v.  Rowell,  6  Mart.  (n.  8.)  267. 

p.  ^m. 
Steamship  Dock  Co.  t».  Heron,  52  Pa.  St. 

280.     p.  246. 
Stearns  v.  Huven,  16  Vt.  87.     p.  288. 
Stebbins  v.  Brown,  65  Barb.  274.     p.  45.3. 
Stebbins  v.  Globe  Ins.  Co.,  2  Hall,  632. 

pp.  55,  263,  478,  484. 
Steel  V.  Houghton,  1  H.  Black.  61.    pp. 

31,  331. 
Steele  v.  McTyer,  31  Allen,  667.     p.  436. 
Steinback  v.  Lafayette  Ins.  Co.,  54  N.  Y. 

90.    p.  269. 
Stenton  v.  Jerome,  64  N.  Y.  480.    p.  310. 
Stephens  v.  De  Medina,  4  Q.  B.  422.    p. 

270. 
Stephens,  etc.,  Transp.  Co.  v.Tuckerman, 

33  N.  J.  L.  648.    p.  829. 
Stephenson   v.  Hart,  4  Bing.  476.    pp. 

136,  143,  225. 
Sterling  v  Jaudon,  48  Barb.  469.     p.  280. 
Sterling  v.  Marietta,  etc.,  Trading  Co., 

11  Serg.  &.  R.  179.     p.  206. 
Stevens  v.  Coxe,  4  Pa.  St.  13.     p.  462. 
Stevens  v.  Cushing,  1  N.  H.  17.     p.  812. 
Stevens  v.  Paterson,  etc.  R.  Co.,  34  N.  J. 

L.  682.    p.  27. 
Stevens  v.  Reeves,  9  Pick.  198.     pp.  6, 

41,  54. 
Stevenson  v.  Snow,  8  Burr,  1237.     p.  256. 
Stewart  v.  Aberdein,  4  Mee.  &  W.  211. 

pp.  49,  251,  262,  292,  293. 
Stewartu.  Cauty.8Mee  &W.  160.    p.  49. 
Stewart  v.  Kohle,  3  Stark.  N.  P.  861.    p. 

293. 
Stewart  v.  Scudder,  2  Am.  L.  Reg.  80. 

pp.  88, 800. 
Stewart  v.  Smith,  29  111.  397.     p.  374. 
Steyer  v.  Dwyer,  31  Iowa,  20.     p.  406. 
Stillman  v.  Hurd,  10  Texas.  109.     p.  466. 
StimpsoD  V.  Green,  18   Allen,    326.     p. 

317. 
Stockbridge    v.   West    Stockbridge,    12 

Mas6.  400.    p.  46S. 


Stocker  v.  Brocklebank,  3  Man.  &  G.  260. 

p.  283. 
Stopvpr  V.  Whitman,  6  Binn.  417.     pp. 

22,  124,  130. 
Stone  V.  Aldrich,  43  N.  H.  52.     p.  364. 
Stone  V.  Bradbury.  14  Me.  186.     p.  886. 
Stone  V.  Kawlinson,  Willes,  561.     p.  20. 
Stono  V.  Rice,  58  Ala.  95.     p.  72. 
Stoney  t>.  Farmers'  Transp.  Co.,  17  Hun, 

583.     p.  76. 
Stoops  V.  Smith,  100  Moss.  63.    p.  394. 
Storr  V.  Crowley,  1  McOl.  &  Y.  136.     p. 

225. 
Stray  v.  Russell,  29  L.  J.  (Q.  B.)  279.     p. 

287. 
Street  v.  Blay,  2  Barn.  &  Adol.  456.     p. 

315. 
Street    v.    Chapman,  29    Ind.   142.      p. 

309. 
Streeter  v.  Horlock,  1  Bing.  34.     p.  228. 
Stringer  v.  Davis,  35  Cal.  26.     p.  284. 
Strong  V.  Bliss,  6  Mete.  393.     p.  299. 
Strong  V.  Carrington,  2  Am.  L.  Reg.  (n. 

8.)  287.     p.  228. 
Strong  t>.  Grand  Trunk  R.  Co.,  15  Mich. 

206.     pp.  22,  32,  63,  71,  235,  408,  469. 
Strong  V.  King,  36  111,  9.     p.  107. 
Strong  V.  Ryan,  46  C^l.  33.     p.  390. 
Stroud  V.  Tilton,  4  Abb.  App.  Dec.  243. 

p.  83. 
Stuart  V.  Crawley,  2  Stark.  N.  P.  823.     p. 

136. 
Studdy  V.  Sanders,  6  Barn.  &  Crew.  628. 

p.  375. 
Stultz  V.  Dickey,  6  Am.  Dec.  411 ;  6  Binn. 

286.     pp.  112,  124,  268,  441. 
Stultz  V.  Locke,  47  Md.  562.     p.  435. 
Sturgis  V.  Buckley,  32  Conn.  18.     p.  ;101 
Sturgis  V.  C  arv,  2  Curtis,  8"  '      r   267. 
Sturm  V.  Williams,  38  ''^  o.  (J.  & 

S.)  323.     p.  806, 
Sugart  V.  Mays,  54  Gn.  p.  45. 

Sullivan  v.  Cotton  States  in.'.   Co.,  4a  Qg. 

423.    p,  26'). 
Sullivan  v.  Hense,  2  Cal.  424.     p.  390. 
Sullivan  v.  Thompson,  99  Mass.  259.     pp, 

232,  234. 
Sultana  (The),  t>.  Chapman,  5  Wis.  464. 

p.  227. 
Sumner  w.  Stewart,  69  Pa.  St.  821.     pp 

285,  286. 


•I 


1 


'ABLE    OF    fASES    CITED. 


Ixiii 


i 


Sumner  v.  Tyson.  -.'0  N.  II.  :?^-I.     pp.  44. 

.310. 
SiitKliiy  v.  Gordon.  I51at''tif.   «V   H.  .Vdin. 

0(50.     p.  27!». 
Suso  y.  I'uinpc.  s  C.  B.  (.v.  s.)  oiJH.     p. 

447, 
Sutton  V.  (treiil  VVcsterii  K.  Co..  11  Jur. 

(s.  s.)  K7!t.     pp.  4r,,  236. 
Sutton  V.  Tathtini.  10  Ad.  &  K.  27.     pp. 

47,  'IM.  287.  2S.H. 
Sutton    r.  Tcmplo,  12   Mep.  &  W.    ">2. 

pp.  2']7,  272.  370. 
Suyd.im  r.  Clark,  2  Snndf.  13.3.  p.  :^14. 
Suydam  v.  AVostfall,  4  Hill.  211.  p.  20:5. 
Swnin  v.  Cheney.  41  \.  H.  2.32.  p.  270. 
Swallow  (The),  01c.  Adtn.  :!:!!.  p.  27t;, 
Swamscot  Machine  C^o.  v.  f'nrtridge,  25  N. 

H.  .3t)9.     pp.  2'i4.  470. 
Swancott    v.   Wcslgarth,  4  East.  74.     p. 

305. 
Sweet  V.  Colgate,  20  Johns.  196.     p.  :";0  i. 
Sweet  V.  Jenkins,  1   R.  1.  147.     p.  441. 
Sweet  V.  Lea,  3  linn.  &  G.  4-')2.     p.  307. 
Sweet  0.  Leach,  (>  Brndw.  212.     pp.  3:^, 

73,  277. 
Sweeting  v.  Pearce,  7  C.  B.  (.v.  s.)  440; 

9  C.  B.  (\.  .<.)  534.     pp.  40.  48.  202.  20:i. 
Swctt  V.  Shumway,  102    Mass.  165.     p. 

372. 
Swift  V.  Giftbrd.  2  Lowell.  110.     p.  2>i2. 
Swift  V.  Mosolcy.  10  \i.  208.     p.  238. 
Swift  V.  Tyson,  10  IV-t.  1.     p.  103. 
Syers  v.  Bridge,  1  Doug.  509.     p.  100. 
Syers  v.  Jones,  2  K.xcli.  111.     p.  .382. 
Syninnds  v.  Lloyd,  6  C.  B.  (x.  s.)  601. 

p.  303. 

Table  Mountain  Tunnel  Co.  r.  Stranahnn, 

31  Cal.  :iS7.     p.  300. 
Taff  Valo  K.  Co.  v.  Giles,  2  Rl.  it  Bl.  '^23. 

p.  216. 
Tailors  of  Bath  v.  (^lazby.  2  Wils.  266.    ' 

p.  263.  "  ! 

Talbotl  r.  Hooser.  12  Bush,  410.     p.  333.    ' 
Tan'  'ry's  Case.  Dav.  32.     p.  31. 
Tai;   .  m  Bank  c.  Richardson,  5  Pick.  436.    \ 

p.  206.  i 

I'aunton  Copper  Co.  y.  Merchants'  Ins.    | 

Co..  22  Pick.  108.    pp.  40,  221. 
Tavin.   „_ ^  2  Ld.  Raym.  792.    p, 

1-    . 


Taylor  v.  -Etna  Life    Ins.  Co..  13  Gray. 

433.     pp.  .".5.  2'17. 
Taylor  v.   Heavers,  4  K.   I).  Smith,  21'). 

p.  378. 
T:iylor  r.  Briggs,   2   Car.  A:  P.  525.     pp. 

278.  402. 
Tavlor  r.  Carpenter.  2  Woodb.  &   M.  1. 

p.  77. 
Taylor  o.  iJevey,  7  Ad.  A:  K.  400;  2  Nev. 

&   P.  460;   I    Jur.  802;   W.   W.  &  D. 

646.     p[).  11.  67. 
Taylor  t,-.  Dulwich  Hospital,  1   P.  AVms. 

t;55.     p.  243. 
Taylor  o.  Griswold,  2  C.   K.  Green,  222. 

pp.  462,  463. 
Taylor  v.  Ketchuni.  5  ilobt.  507.     p.  310. 
Taylor   )•.    Perkins,    26    Wend.   124.      p. 

283. 
Taylor  v.  Sotolingo.  6  La.  .Vn.  154,     p. 

333. 
Taylor  o.  Stray.  2  (\  R.  (v.  s.)  175.     pp. 

287,  288. 
Taylor  v.  Tucker.  1  Ga.  231.     p.  84. 
Taylor  u.  Wells,  3  Watts,  f,,'',,     pp.  215 

238. 
Taymon  v.  Mitchell.  I   Md.  VA\.  406.     p. 

:i06. 
Tcaft'  r.  Hewitt.  1  Ohio  St.  511.     p.  271. 
Teller  r.  Green.  2:'>  Mich.  70.     p.  365. 
Temple   r.  Betding.  1   Root.  314.     p.  317. 
Templeman  r.  Biddle,  1  Ilarr.  (Del.)  552. 

pp.  112,  260. 
Terrell  r.  Hranch   Bank.  12  Ala.  502,     p. 

206. 
Terrell   y.  Walker.  69  N.  C.  214,     p.  .361. 
Terry,  Re,  7  L,  T.  (\.  s.)  370.     pp.  202. 

204. 
Tewkesbury   v.   Bricknejl.   1    Taun.    142» 

p.  112. 
Te.vas  i\   Hardenburg,   10  Wall.  68.     p. 

214. 
Thackthwaite  v.  Cock,  3  Taun.  487.     pp. 

202,  203.  204. 
Thatcher  i:  Bank.  5  Sandf.  121.    p.  206. 
Tiiayer  v.  Deen,  2  Hill  (S.  C.),  677.     i^. 

84". 
Thayer  -■.  Wadsworth,  19  Pick.  349.     p. 

278. 
Thomas  v.  Bartow,  48  N.  Y.  200.     p.  311. 
Thomas  v.  Boston,  etc.,  R.  Co.,  10  Mete. 

472.     p.  225, 


E 


1   HS^ 


iriiii;: 


1    ' 

i  1 

1   !■  ■ 

1              , 

i                 . 

1  ■ 

i                  i 

'M 

t    ffl 


Ixiv 


TABLE    OF    CASKS    Cn'KI). 


Thoiims  /,'.    IJnickiiey,   17   ISiirb.  <)")(.     p, 

Thuiniw    c.  Clarke.  2   Stiuk.  N.    P.   450. 

11.  I'.tii. 
Tlioiiias  ('.  Grave-,  1  .Mill  Const.  ^lO"!.     pp. 

77,  '.¥.). 
Thoinii-  V.  Ki!i>lny,  H  Ga.  421.     )).  214. 
ThoiiiMS    I).  O'HuiM,  1    Mill    Const.    oO-J. 

pp.  Its,  1 !).-).  27S. 
'I'lioiiias   y.  Tiioinas,  6   Tertn    Uep.  69'i, 

p.  ;i',t8. 

Thomi)>!on  v.  Aslitoii,  13  Johns,  ilti,    pp. 

;!07,'428,  4«2,  484. 
Tlionipson  v.  Friuiks,  37  Pa.  St.  .■i27.     p. 

281. 
Tlioinoson    v.   Hamilton,   12    Pick.  420. 

pp.  41,  282. 
Tliompjon  •«.  Kniokerbocker  Ins.  Co.,  8 

Cent.  L.  J.  i)!!!.     p.  2')6. 
Th(iiiip=o'i    V.   liiug;*,  5    Wall.  'id;},     pp. 

211,  4()(!,  474,  484. 
Tlioin}).>on  v.  St.  r^-mls  Mutual  Ins.  Co., 

52  IVIo.  i(J!).     p.  2t)G. 
Thompson    v.  Sloan,   23    WcMid.   71.     p. 

;;8i;. 

Tliomsou  V.  .\H)ert,   15  JNId.  2tJS.     p.  40. 
Thomson  y.  l)av('n|ioi't,  '.)  Barn.  iSi  Cres.-;. 

78;  2  Smith's  U\.  Cas.  297.     pp.  344, 

345. 
Thomson  v.  Havoloek,  1  Camp.  527.     p. 

204. 
Thomson    o.    Porter,    4   Stn.bh.   Eq.  58. 

p.  82. 
Thorn  v.  Kice,  15  Mc.  2<)3.     p.  33. 
Thorno  v.  Deas,  4  .John^.  101.     p.  29' 
Thorpe  y.  Eyre,  1  A<1.  &  K.  920.     p.  272. 
Thorpe  v.  Kyre,  3  Nov.  &  M.  214.     p.  30. 
Thornton   y.  Sullblk  Man.  Co.,  10  Cush. 

370.     p.  38. 
Thornton  v.  Wynn,  12  Wheat.  183.     p. 

311. 
Tiiurber  v.  Martin,  2  Gray,  394.     p.  333. 
Thwing   y.  Great  Wcstorn   Ins.  Co.,  HI 

Mass.  93.     p.  435. 
Tichburno  u.  White,  Stra.  145.     p.  130. 
Tickel  V.  Short,  2  Vos.  230.     p.  291. 
Tilley  v.  City  of  Chieago.     pp.  350,  371. 
Timm  v.  Hear,  29  Wix.  254.     p.  333. 
Todd  y.  Keid,  4  Hnrn,  &  Aid.  210.    p.  192. 
Toledo,  otc,  Ins.  Co.  v.  Ppearos,  16  Ind. 

52.    p.  45. 


Tomlinson  r.  IJorst.  ■".0  Barb.  40.     (>.  (^3. 
Ton^^^ee   y.  ivi^inell,   10  La.   An.  hOO.      p. 

291. 
Tonnoreau  c.  Poynt/.    1   l?ro.  C.  C.  477. 

p.  35.'!. 
Torrance  y.  Hayes,  2  UppiT  Canada  C.  P. 

338.     pp.  •!.'),  77 
Totter(le;i  y.  Kon.'ham  Bra!'  Co.,  L.  K.  1 

C.  P.  074.     p.  289. 
Touro  y.  Cassin,  1    Notl  &   M.  173.     p. 

32. 
Towell  V.  Gatewood,  3  111.  22.     ]).  309. 
Tower  v.  Utica,  etc.,  K.  Co.,  7  Hill,  47. 

p.  221. 
Town  of  Pawlet  y.  Clarke,  9  ('ranch,  294. 

p.  103. 
Townsend  v.  North- We.-iern  Ins.  Co.,  18 

N.  Y.  108.     p.  2:2. 
Townson  w.  Guyon,  Park.  020.     p.  251. 
Trab  'e  y.  Sayre,  1  Bush,  131.     p.  81. 
Trask  «.  ^lartin,  1  E.  D.  Smith,  505.     p. 

200. 
Traverse  y.  Townsend,   1   Bi'o.  C  C.  381. 

p.  2!tl. 
Treauway  y.  Sharon.  7  Nev.  37.     p.  99. 
Tremble    y.  Crowell.    17    .Mieh.    493.     p. 

4t,0. 
Trott  0.  Warren,  2  Fairf.  227.     p.  403. 
Trott  .'.  Wood,   1  Gall.  441.     pp.  30.  42, 

192. 
Trotter  v.  Grant,  2   Wend.  413.     pp.  52, 

318. 
Trowbridge  v.  Chupin,  23  Conn.  595.     p. 

215. 
True  u.  True,  33  Me.  307.     p.  286. 
Trueman  v.  Lnder,  11  Ad.  &  K.  589.     pp. 

289,  303,  344,  345,  319,  350,  302,  481,  481. 
Trull  y.  Wheeler,  19  Pick.  240.     p.  455. 
Trumper  u.  Carwardine  [1709].     p.  170. 
Trustees  v.  Brooklyn   Ins.  Co.,   19  N.  Y. 

305.     p.  82. 
Tucker  v.  Ives,  0  Cow.  193.     p.  317. 
Tucker  v.  Woods,  12  Johns.  189.     p.  301, 
Tuoley  u.  Thomas,  8  Car.  &  P.  104.     p. 

SQ4. 
Ti'.mlin    y.  Goldsmith,  40    Ga.    221.    p. 

281. 
TurnbuU  y.  Garden,  38  L.  J.  (Ch.)  331. 

p.  294. 
Turner  y.  Bank  of  Fox  Lake,  23  How,  I'r, 

399;  4  Abb.  App.  Dee.  434.     p.  324. 


I 


TAIU.i:    OF    CASKS    CITKD. 


Ixv 


i.     \>.  ^'-i- 
1.  ^01).      \). 

J.  C.  477. 

nndii  C.  P. 

0.,  L.  11.  I 

I.  17;!.     p. 

p.  309. 
7  Hill,  47. 

."i-undi,294. 

Ins.  Co.,  18 

►.     p.  251. 
,     p.  ^il. 
ith,  50J.     p. 

(J.  CO.  :JHt. 

;!7.     p.  9U. 
ioh.   498.     p. 

p.  iW>. 
pp.  IJO.  IJ, 

413.     pp.  "^'i 

juii.  590.     p. 

286. 
K.  589.     pp. 
ii;2.  481,  ISI. 
:40.     p.  455. 
.9].     p.  ITO. 
o.,  19  N.  Y. 

p.  317. 

189.     p.  :W1. 
l\  104.    i>. 

Ga.   221.    p. 

J.  (Oh.)  331. 

,  23  Uow.  I'r. 
p.  324. 


Tnrnori-.  Hurrowi*.  •')  Wend.  -'11:^  Wond. 

1 1 1.     p.  HO. 
Tmiicr  )-.  D;i\v>oii,  .jO  111.  8.").     p.  oi'. 
Tiini.T  r.  Tli()inn>,  L.  R.  'i  ('.  P.  filO.     p. 

■_".'2. 
'riirncr  r.  'ruriicr,  U  M...  -"j^SO.     )i.  .'li'io. 
Tutth-  c.  lyy.i:  7  .lohi;-^  170.     p.  :ii;l. 
Tyson  V.  Smith,  1  Ncv.  A   1'.  7s|:  1   ]Vr. 

iV  Diiv.  •';07.     pp.  10.  lid. 
'I'vson  V.  Smith.  9  Ad.  &  E.  40<;.     ,ip,  37, 

"ti4,  78. 

IHide  )-.  W'ftltiM's,  '■)  Camp.  Iii.     pp.  3;!ii. 

403. 
Undcrwoi):!  )•.  t'.'irncy,   1    C!usli.  liSo.     p. 

Underwood  r.  Nieliols.  17  <".  !'>.  23''.     p. 

292. 
Union   l?;uik  r.  Fni'i'e-t.  3  Cranch  0.  Ct. 

218.     p.  .(•-,:;. 
Union  Unnk  i-.  Knapp.  :'.  Piek.  9(5.     p.  Si. 
Uni'Mi   Hank  r.  Laird,  1.'  Wh.'at.  390.     p_ 

217. 
Unioi,  Hank  c  Stoix',  "jO  Mo.  ,V.l.').     p.  Si. 
rnioM   liaiik  '•.    Ciiini!   In.;.  Co.,    Dudley 

(S.  C.I,  171.     p.  -J.')!. 
Union    IJank    i\    Warren,  4    Sneed.   107. 

p.  21:i. 
Union  Man.  Co.  c.  Pitkin,   14  Conji.  174. 

p.  241. 
Union  .Mutual    Ins.  Co.   v.   Indi.mapoli.-, 

etc..  |{.  Co..  I  [)i<ney.  ISO.     p.  |;;i;. 
Union  I{.  Co.  v.  Yeacjer,  31  Ind.  1.     p.  3:!. 
United  States  r.  A  ;Tedondo,  G  Pet.  715. 

p.  9i".. 
United  States  i\  iJuelianan,  Crubbe,  53'). 

pp.  3;;,  109. 
United  Slates  r.  Mueliadan,  s  How.  83:  3 

■\Vasli.  C.  Ct.  14'.».     pp.  33,  303. 
Unite.l  Stati>>  c.  Duval,  dilp.  :'.5ii.     p.  .'1:), 
United  Stnte.s  r.   Fillebrown,   7   Pet.   L'S, 

pp.  li'.tl,  :::~3. 
United  Stales  w.  MeCali,  (li'.p.  M^.     ji.  3:;. 
United  States  v.  McDaiuel.  7  iVt.  1.     p]i. 

291,  ;:;!.!. 

United   States    y,  Peebnian,    7    i'et.   51. 

p.  3H7. 
United  States  Baid<  r.  Hionoy,  5  .Mh.soii. 

nO;  5  IVt.  5-J',t.     p.  'JHO. 
United  States  Hank  v.  Fleeknor,  8  Marl. 

(La.)  809;  18  Am.  Dec.  387.     p.  20.^. 


Uidted  Stales  Express  Co.  v.  Kusl.    :'i 

Ind.  403.     p.  242. 
I'ldtcd  Stales   Lit'i;  Tns.  (!<,>.  )•.  .Vdviuiec 

Co..  bO  111.  5P.I.     p.  'N(i. 
Upsban^  c.  A  idee.  Com.  -'<.     p.  loi). 
Upton    >.:   Sturhrid^e    Cotton    Mill-.    Ill 

Mass.  44t;.     p.  104. 
I'pton  V.  Sutlolk  Mills.  4  Cush.  -".S;;.     ;.. 

2S1. 
Upton  r.  Suflolk  Cotton   Milks,  11  Cu-h. 

587.     p.  287. 

Vail  V.  Durant.  7  .\llen.  40'.i.      p.  •J9;i. 
^'ail  V.  Ki.'e.  5   N.    V.   l.")5.     pp.  '.t7.  '.I8, 

\'aliMe  e    r.    1  >i'\var.    1    C.  n)>.   50.'l.      jip, 

1  |:;,  li5t,  -J.")?. 
Vallejo  r.  Wheeler,  1  Can.p.  IJ:;.      p.  20. 
\'a!i'iitiiie   ('.  PeiMiy.  N  ly.  145.      p.  ;!2. 
\'an  .\lstyne  v.  .lOtiri   Ins.  Co.,  14   Hun. 

.•le.li.     p.  410. 
A'au  .\niee  v.  ISankol'  Troy,  S  Harb.  ;!12. 

p.  ;■'.•. 

Ynu  Ani:in!j;e  v.  Peabody,  1    Mason.  440. 

p.  •J'.'O. 
\'an    lieui'en     i;.  \'an    (iaa-lieek.   4   Cow. 

4'.ii;.      p.  317. 
^'an    IJokelen   v.  T.iylor,  OJ    N.    V.   105. 

p.  301. 
^'aM  Dorei]   1-.  K\'erill,  2  Si.utn.   liiO.     p. 

■2i\'.l 
Van    Ki'uri'U    c.   I'ai'nn'lec.  -J    \,  V.  .""rJo. 

]).  2S0. 
^'an  Xess   v.  Paeard,  2  I'-'t.  117.      p.  271. 
\'an    Pu'iisselai'r  v.  .lewelt.  2  N.  Y.   141. 

p.  T.t'.i. 
Vansaiids   r.  Middlesi-x    15anu,  20  Conn. 

144.     p.  2!(;. 
Van   Suitxo.ird  l-.  St.  .lolin,  G  Hill,  167. 

pp.  115.  215,  2  !5. 
^'an  Srlinndt  v.  Huntington,  1   Cnl.  55. 

p.  .".'.lO. 
\'arner  v.  Nobleborougli,  2  Mo.  121.     p. 

310. 
X'aui^ban  v.  Monlove,  3  Bintr.  N.  C.  40S. 

p.  319. 
Vautchn  d.  Gardner,  7  B.  Men.  32G.     pp. 

5:!.  277. 
Van-hn  r.  Paleij^li,  etc.,  R.  Co..  03  N.  C. 

II.     ]).  SO. 
\'eith-  r.  llau-'i-e,  8  Iowa,  Pi3.     p.  31  T, 


if 


;>1 


W'-U 


.  p 


wm 


i  I 


■I* 


f;  X- 


i;      I 


I      i 


li 

:■  I 

i'    I" 
'I     s 


M 


l.\Ni 


TABLK    OF    CASE.s    CITIOD. 


Voloria  (Tlie),  3  Wall.  1:»,     p.  li:'.-^. 
Vorinil_\"u  «.  Adaiiis  Express  C'c,  21  Wall. 

l;59.  "  pp.  -m,  J7»S  48j. 
Vonioii  y.  Wc>l  Sclidol  District.  ^SiS  C'oni.. 

112,     p.  4(5^, 
\'oiy,ai\    V.  ^[(.Grcgor,  -'i    Cal.    ^i'-i'.>.     p. 

:'.'14. 
V'icki  y.  Germania  Iiis.  Co.,  2ij   lo\v;i.  10. 

p.  2  0. 
Vliet  V.  Caniiibi'll,   l".   \V\>.  ll'S,     p.  MU'.'. 
Voorhees  v.  Kail  2  Hill,  2«8.     p.  :;iJ. 
Voorliis  V.  Fiveiuaii,  2    Watts  it  S,  ll(i. 

p.  27 
^'o?  I',  llobinsdii,  9  .Jcilin-.  I'.IJ.     y.  '■)-. 
Vosbiir^li  D.  Tliavrr,   12   .loliii.-.    |i]|.     p. 

\'oughten  v.  AtwoDci,  1  .Mddeni,  202.     p. 
64. 

Wftbnsh,  etc..  (Jaiial  Co.  y.  lirett,  2")  In  J. 

100.     p.  270. 
Waddiiigton  i'.  Oliver,  2  15os.  A:  I'ul.  lil. 

p.  812^ 
WiulU'V  V.  IJr.yliss.  2  'i'aiin.  7')2.     p.  :!'iti. 
Wadley  v.  Davi.^  •>;   l''u-b.  '.00.     pp.  7;i, 

277.' 
Walsworth  v.  Olcott,  li  N.    Y.    '■<4.     p. 

4:i:i. 
Wailc  y,  Fiiiiliank-.    Bniyt.   77      p.  Ml. 
Wakniold  V.   Litli-oxv.  :l   Mas.s.  210.     p. 

;!I0. 
Wnlciiit  y.  Canlieid,  o  Cini'i.  10-5.     [>.  284. 
Wiildi'ii  y.  SherbiiriR',  I')  .loiiiis.  422,     p. 

2.'-0. 
Walker  y.  iSarroii,  G  ^liiiu.  50s.     pp.  ;j7, 

lO'l. 
Wiilk(  r  y.  Curtis,  11(5  Mass  9-1.     p.  82. 
Walker  y.  .laekson,  10  .Meo.  &  W.  101. 

p.  21".. 
Walker  I-.  :\ioek,  :;',!  Ala.  508.     p.  4t'.8. 
Walk.r  y.  Moore.  10  Barn.  &  Cress.  410. 

)..  :;70. 
Walkir  r.  Os^jood,  08  Mass.  ;J48.     p.  205. 
Walker  c.  '!"raii-porlatiou  Co.,  ■)   Wall. 

I'.O.     pp.  21.!,  4  12. 
Wall  V.  East  iliver  liis,  Co.,  IJ  Duer,  204. 

p.  SO. 
Wall  V.  Howard  In-,  Co.,  14  Darb.  ;)8:l. 

pp.  150.  200. 
Wallaec  v.  i5radsha v\ ,  0  Dana,  .•:82.     p. 

2^0. 


Wallace    V.  .Morgan,  28   Ind.    800.     pp. 

:!4,  112.  280. 
Wallace    v.   Telluir,   2    Term   Kep.    188. 

p.  201. 
Waller   y.    IJasik  of  Kentueky,    3   J.    J. 

Marsli.  201.     p.  244. 
Walli.s'  (,'ase,  Cro.  Jac.  555.     p.  4fi3. 
Walls  c.  i',ail.y.  10  N.  Y.  404.     pp.  26, 

40,  5;;.  51.  71,  :!02. 
Wall's  Cum..  L.  K.  15  iv|.  18.     p.  80:1. 
Walsh     c.    Center,    1     Wend.     185.     p. 

80r.. 
Walsh   y.   Fraidi.   lO  Aik.  270.     pp.  41, 

201. 
Walsh    y.    Iloiuer.    10   .M<..    0.      pp.    ItiO, 

248.  25 1. 
Walsh  y.  Missis-ippi  Transp.  Co.,  52  Mo. 

4.;  I.     p.  4.5. 
WaUh   y.  Souihworth.   0  Kxeli.   15''..     p. 

2SS. 
Widter  V.  ilaynes.  llyan   &  Jl.  140.     p. 

81"i. 
Waller,  lie,  7".  N.  Y.  851.     p.  07. 
Walton,  Kx  parte,  20  L.  .1.  [C\\.)  512.     p. 

210. 
Ward  y.  Eveiett,  1  I)  ina.  420.     p.  O^i. 
Wa:d  .•.  Whitley,  8  ,<andl'.  800.     p,  IO-<. 
Wav.h'   ,-.  Slue.rt',    1    C.  H.    (.V,  .S.)  ^^.     p. 

S75, 
W.anh'll  y.  Mourillya;),  1  Ksp.  098.     pp. 

140,  118,  225.  22\  187. 
Waie  c.  Ilayward  Kubber  Co.,  8  Allen, 

^^1.     p.  115. 
Warhus  y.  Bowery  Savlng.s  Uaidi,  5  Duer, 

07.     p.  70. 
Wurinu;  t).  Griidy,  40  Ala.  405;  20  Am, 

lie). .280.      pp.  178,  282. 
Waring  v.  Grow,  11  Cal.  80''..     p.  800. 
Waring  v.  Mason,  18   Wend.  425.     pp, 

808,  80',>. 
Warner   r.   Martin,   11    How.  20:i.     pp. 

2-!^.  200,  202,  208. 
Warren  r.  Crow,  22  Iowa.  815.     p.  8i;i. 
Warren  y.  Franklin  [ns.   C(..,    104   Ma>-. 

518.     pp.  257.  I'i5. 
Warren  Baid<  y.  Parker.  8  (Jray,  221.     p, 

200. 
W;irr(!n   Bank  r.  Sullblk   IJaidc,  10  Ciisli. 

582.      p.  200. 
Waiirieke  r.   Xoakos,    L'eake    N.    P.   08, 

pp.  -■■<:).  :\\i\. 


M 

% 


^ 


Vft; 
■f 


•il 


TABLE    OF    CAsst>    CITED. 


Ixvil 


pp-  ■■^•^ 


!'•   "■  ■ 

■n 

>S.      1). 

"*'. 

j^B 

'.):;.     pp. 

'9 

;;  AU.'u. 

,  r>  Duor, 

;iO  Am. 

p.  31)0. 

■!■>.     PI'. 

20.'.     PI'. 

p.  :'.iM. 
lOi    Mus-. 

.■l-2\.     p. 

HI  ClLsll. 


Washington  u.  The  State,  :)*'>  ( ii>.  li4i'.     p. 

3S3. 
VVasliitii^ton  Bank  v.  Lew'nf,  '22  Pick.  24. 

p.  113. 
Wa^^hington  Fire  Ins.  Co.  v.  Davison,  80 

Md.  'Jl.     pp.  55.  -If,-). 
VVasliini^ton,  etc.,  Ins.  Co.  i>.  .\recliuiiic3', 

etc..  Ins.  Co..  0  Ohio  St.   I.")0.     p.  2'Al 
Wati-rpark  v.  T''onnell,  7    II.  L.  Cas.  t;50. 

p.  :{<)'•'. 
Walt       ..  Lilley.  4    I'ick.    145;    ki   Am. 

l)c  .       ;.     p.":!31. 
W'mIIi   ■•.1    y.   II<i\vells,    1    (amp.  34.     p. 

L'7I. 

WNlkins  0.  Ivislin.   1    A.  K.  .Mnrsli.  4(VJ. 

|..  71. 

\V,a>..:i,  K\  parte.  Ill   \'i'>.   I-V.i.  p.  ■2H\. 

Wiitsoii  r.  lii'ewstcr.  I  Barr.  :iS| .  p.   110. 

Wiii^iiii  f.  Duylciiii-K,   3  ,jii!iiis.  :,\7.     \<. 

•J:;7. 

\V;,t-.rn  c.  I'.'a.'h.'.  1  liin-.  N.  C.  3-J7.     j,. 

■Jii.'. 

Wall  I',  llatcli,  125  I'a.  St.   111.  p.  MI7. 

Wa.vmafk   /■.  IIrilma:i,  'Jii   Ark.  I  I'.t.      p. 

:;';4. 

Wayiiii'ii  -•.  Ket.'d.  5  Term  lii'p.  liUO.      p. 

'•  •>. 
Wu.Mie  V.   'I'iio   (leneral    I'ike.    i'l   Oliio, 

rJl.     ]..  2  1:.'. 
Waii^^ii    ,-.   Carver,  2   H.  Bhuk.  2.15.     p. 

Weall  r.  Ivln^',  12   Kast,   1.52.     p.  oOl. 
WealluTliead  v.  Sewull,  'J  lliimpii.   272. 

p.  lOi'. 
\Vi'av(-r  f.  Fegely,  21)  i'a.  St.  27       p.  451. 
Wil'h,  In  !■(■.  S   I'auM.  413.      p.  i  i". 
Weiilt,  In  re,  2  .J.  15.  Moo.  :,Ofl.     p.  l;)!;, 
We!. I)  f.  ilunvil,  H:.  IJ.  l:,■^7.     p.  17. 
Weill)  I'.  National  I'Ire  Ins.  C'o.,  2  Sand!'. 

r.i7.     p.  lOil. 
Wi'hb  V.  I'lummer.  2   JJiir.ii.  it  Aid.  74';. 

pp.  270,  275. 
Wilier  V.  Kinu'sland,  S  Bo-w.  415.     p[i. 

41,2:;(;. 
Webster  I'.  Weh.l,.r,  1  Fust.  &  Fin.   JOj. 

p.  .'^2. 
Wi"m1   r.  iJaniey.  45  \.  V.    141.     )'.  235. 
Weed  t:  Saraloixa.  etr.,  K.  Co..  I'.i  Wciul. 

541,  512.     p.  .3.52. 
\Veekly   v.  Wildman,  1   Ld.    Uayni.   407. 

|>.    lli. 


\V'i  idi.ei-    V.  Seiiweigart,  9    Serj^.    &    R. 

385.     p.  815. 
VVei^^ser  i-.  Deni.son,  10  N.  Y.  68.     p.  211. 
Welch    V.  Alton,  etc.,   Ins.   Co.,    H)   111. 

225.     p.  3(;2. 
Welcome   V.  I'pton.  5   .Mee.   A;   W.  3V)8. 

p.  2(;. 

W(dd  f.  (i(jrliani,  10  Mass.  3i)tJ.     p.  '^07. 
Well  man  c.  Nuttinji;,  ,',  .Mass.  434.     p.  58. 
Werner  v.  I'ootman,  .54  (la.  128.     p.  441. 
West  y.  liall,  12  Ala.  310.      p.  2'J2. 
West  «.   Cunnin^liam.  '.>   I'ori.    101.     p. 

30i;. 

We-l   r.  11..II-C 4    llai'r.    170.     p.  4iiS. 

W.'-l   i\  ivli\.  I'.i  Ala.  253.      p.  3ii4. 
Western  'I'lMii-p.  Co.  >;.  liarlu^r,  52  X.  Y. 

511.    p.  ::3s. 
\\'.-^trall  r.  SiiiMJeion,  1  Wa-1).  (Va.)227. 

p.  inn. 

\\'e-twood    i-.  I!eil,  4  Cam)!.  :;1'.'.      p.  21)2. 
Wellierill  0.  NeiUon,  20  i'a.  Si.  I  Is.     pp. 

.".U7,  3()1),  430. 
W'hedoii    V.  Ciia.'npliii,  511   I'.aili.  ill.     p. 

:;30. 
Wheeie,.   0.  Ncnvb.iuld,    p;   N.    Y.  3,1)2;   5 

Diier.  2t;.     pp.  45.  310. 
Wheeler  u.  Nurse,  20  N.  II.  220.     p.  443. 
Wl.eeier  c.  Kowell,  7  N.  II.  ■M5.      p.  332. 
\\'hi!aker    V.    Ha.-twick,    75    I'a.    St.   220. 

p.  3(li-.. 
Wli.ti'  f.  Fuller,  'm   liarb.  2  ;7.     p.  2Mi;. 
While  y.  MadiM.ii,  -J.;  N,  Y.  117.     p.  2:il. 
While   ('.  .'>.  i; iial    l-'ire   Ins.  Co.,  8  (ji'av, 

.5'i';.     p.    107. 
While  0.  Nicholson,  I  Man.  it  ().  '.15.     p, 

270. 
While  n.  S.tyer,  Fall. i.  211.     pp.  172,  273. 
White  r.   Ward.  2li  Ark.  415.      p.  21)1. 
\Vhiie   V.  W  i')>l),  15    Conn.  :,0.'.     p.  23s. 
White  ,-.    Wcstporl  Cotton  Mtm.  Co.,   1 

I'll  k.  215.     p.  211. 
White    y.    Wilson,    2    l!o-.    A:    l';d.    Ilti. 

p.  1511. 
White  ('.  Winnisitnniet  Co.,  7  Cush.  155. 

p.  221. 
Whitehead   r.  Tuckett.  15  Fast,  408.     p. 

2S(;. 

Whitehoiiso   V.  .Moore,   13  Alih.  I'r.    H2. 

p.  112. 
W  hilesell    0.  Crane,  8  Walts  &   S.  309. 

p.  1.5. 


t\ 


"1., 

i    ■< 
^1 


y\ 


m 


I  5^1 


!    1    t. 


Ixviii 


TABLE  OF  CASKS  (;rn:i>. 


■I 


■I  • 


i    ;      I:}' 


■il  ' ' 


jj   ^  j 


t    t 


Whittctnore  v.  Weiss,  33  Mich.  34s,     p. 

383. 
Whitmursh  v.  Conway  Fire  Ins.  Co.,  1*> 

Crviiy,  35!).     p.  401.' 
Wliitnioro   V.  .South  '{M-toii  Iron  Co.,  2 

A.llen,  52.     pp.  310,  483,  485. 
Whitnoll  V.  (iurlliiun,  6  Term  liep.  398. 

p.  340. 
Whitney  v.   Hoardman,   118    :Mass.  243. 

p.  37'). 
Whitnoy  v.  K-sun.  'M   >[!iss.  30s.      p,  ~c,, 
Wiiilnoy  V.  Slorliii::;.   14  .John-.  215.     p. 

Wiii(on  0.  Spring,  74  N.  V.  WK     p.  202. 
Whitwi'll  ".  .lohnson,  17  Mn?--.  U'.».     pp. 

205,  2  (7. 
\Vi(lL;i'i-y    11.  Munviio,  li    MiHS.    )4'.>.     pp. 

205,  20ii. 
\Vi!J!;';;if'\V()rlli   c.  D.illi^on,   I    Doug.  201: 

1   Smith's   I,  I.  (';w    '.1)0.     pp.  '-:7.   169, 

2(;S,  273,  :;;;;.  314.  430. 
Wiloock^  u.  riiillips,  1  Wall.  jr.  (13.     pp. 

21.  :M,  2.S(). 
Wilfox  >\  Wood,  9  Wend.  316.     p.  15. 
Wiley's  Appeal,  8  Watts  &  S.  214.     p. 

201. 
Wilkes  u.  HroiidlKMit.  1  Stni.  12.i  I.    p.  173. 
Wilkes  V.  Broadbont.  \Villcs,  i>3.     p|i.  31. 

C3. 
Wilkins  y.  Wood,  12  Jur.  5S3 :   17   L.  .1. 

(Q.  IJ.)  31',t.     pp.  30.  105.  217. 
Wilkinson  v.  Fnizier.  I  l^-ii.  1S2.     p.  2s3. 
Wilkinson  v.  Jctt,  7   Leigh,  15.     p.  2^3. 
Wilkinson  v.  Lutwidge,  1   Sl'';t.  018.     ]). 

211. 
Wilkinson  v.  I'roud.  1!   Mee.  &   W.  3., 

p.  331. 
Williird  V.    Huekingiiain,   3t)  Conn.   395. 

p.  284. 
AViliard  i:  Merritt,  45  IJarb.  •.:95.     p.  3:^0. 
Willard  v.   NewburyporL,    12  Pick.   227. 

p.  404. 
WilU'oxw.  Windsor,  3  Darn.  &  Adol.  4:). 
■    p.  17. 
Willots   V.  Phojnix    I5ank,  2   Duer.   121. 

p.  205. 
Willetts  V.  Paine.  43  111.  433.     p.  210. 
Willey  V.  Conner,  44  Vt.  08.     p.  207. 
Williams  v.  Allison.  2  East,  410.     p.  301. 
Williams  v.  Donaldson,  8  Iowa,  109.    p. 

865. 


1    William-  /-.  (iilman,  3  Me.  270.    pp.  29. 
i       277. 

:    Williams    r.   .Niagara  Fire  Ins.   Co.,   50 
.       Iowa.  501.     pj).  45,  .50. 
'    Williams  v.  People's  Ins.  Co.,  57  N.    V. 
I       574.     p,  2'12. 

1    William-i   V.  SpMrt'ord,  8    I'ick.    250.     p. 
j       308, 

!    Williams)).  Woods,  10  Md.  220.     pp.289. 
i       308. 

I    Williamson  «.  Liai-iioui'.  37    L.  T.  (n.  s.) 
<i9S.     p.  294. 
Willing-  »!.  Ci.ti-e.;ua,  1    Pet.   C.  (Jt.  225. 

pp.  30.:,  30  1. 
Willis  r.  II  iiris,  20  Texas,  13'>.     p.  277. 
Williaering  i\  .Mc(  I'l'sghcy.  30  low  i,  205. 

p.  4H. 
Wiiloughby  r.  Ilorridge,   71   lvl^■.  Com. 

La-v.  742.     p.  221. 
Willoiighby   ('.    Moulton,  17   N.   II.   205- 

p.  -.11. 
Wiliiiot  r.  Smith.   .Moo.  &    .M.  2:i'~>.     p. 

292. 
Wil.-on  V.   IJauinan.  80  lil.   193.     pp.  ;;0. 

54.  10  ;.  101.  277. 
Wil-;on  V.    Uandall.   07   N.    V.    :;nx.     p. 
!        :!>19. 

■    Wilson  i.\  'I'liorpe.  (1  Mcc.  it  W.  721.     p. 
!       2.*^"^. 
i    Wilson  c.  Whitehead.  10  .Mee.  ^V  W.  .503. 

I       P-  -■■"'•'• 

I    WiNon  V.  Will.s,  7  Ka-l,  121.     p.  31. 

i    WilMMi  V.  York-,  .te.,  R.  Id.,  17  L.  .1.  223 

p.  215. 
!    Wiltshear  v.  Cottrell,  1  I'A.  &  l)\.  07 1,     p. 
;       272. 

I  Wilt-hire  V.  Sim<,  1  Camp.  25's.  p.  2^7. 
Winans  v.  Ilassey,  48  Cal.  tV.'A.  p,  :',10. 
Wiiu'kesline  v.  F<bdon,  12  ^Modern,  21il. 

p.  05. 
Winder  v.    Blake,  4  Jones  L.   332.     p. 

3.32. 

Wing  r.  Krle,  Cro.  Kli^.  207.     p.  337. 
Winne  I,'.  Niekerson,  1   Wis.  1.     p.  S2. 
Winnesliiek  Ins.  Co.  v.  llol/.grale.  53  111. 

510.     p.  207. 
Winship  0.  Bank  of  United  State-:,  5  Pet. 

501.     pp.  2^0,  283. 
Winsmore   v.   Greenbank,    Willes,    581. 

p  247. 
Winsor  v.  Dillaway,  4  Mote.  221.    p.  70. 


I 


■,i| 

i 


..^iM^ariMuaiMAMaiduaai 


TABLE    Of    CA8EI»    CITED, 


I   \  ,   .  V 


p- 

'I . 

|;i  111. 

I'ot. 

581. 

|i.  70. 


'{fi 


3 


^i*, 
■^ 


;■-! 


■I 


■9} 


r.'. 


WiiiHor.  Kx  ixirtc,  o  Story.  41 1.  p.  288. 
Winsur  c.  Gri.i,'tjs,  '>  C'lisii.  210.  p.  liOl. 
Win.-or    v.  Lor^biird,    18    Picis-.    •'/.>.     p. 

80'. 
WiiitiT  V.    I'liilcil  Stales,  Heinpst.   ;ilt. 

p.  1.-;;. 

Wintliiop   0.    rniiiii     Ills.   Co.,    ^Vha^t. 

i>ii,'.  "i.vi.    ]).  I •■;<!. 

Wiiithrop  V.  UnitJii  ins.  (.^'o.,  2  \\':i?li.  (.'. 

Ct.  7.     pp.  '.''.).  100,  12'.. 
Witiic.'k   (?.    IlollMiiil,    15  X.    Y.    l;i:    55 

r.iirh.   11:1.     p.  2:12. 
\\illiii(ll    c.   Cirathiiiii,    1  Ksp.  '■•22.     [•>]>, 

■w,,  UV.]. 
Witic  y.  Di'rliy  j-'i-hiiig  Co.,  2  Cun.i.  2i'.0. 

p.  245. 
Wii/l.T  0.  Collins  70  Me.  21)0.     p.  225. 

Wolc.it    V.  In-iirunce  Co.,  4    I'u'k.  42;i. 

p.  221. 
Wolf.'  .-.  Myer^.  3  Siuidf.  7.     p.  408. 
Wuinack   V.  Mc(iiiurry,  28  Irni.   10;;.     p, 

270. 
\V,uii.'i>!.-y   V.   Daily.  2:)  L.  J.    (Exfh.) 

21'.i.     pp.  5.  45. 
Wocd  !■.  Au'^u.-liiic,  (il  Mo.  dfi.     p.  'Ml. 
W'lod  r.  Corl,  4  .Mete.  205.     p.  20(;. 
Wood  )■.  Kdwards,  I'J  Johns.  205.     p.  361. 
Wood  /.-.  llicUok,  2  Wend.  601.     i)p.  52, 

'.t7,  14:;. 
Woo  1  (,-.  Milwaukee,  etc.,  R.  Co.,  27  Wis. 

541.     p.  :!2i'. 
Wood  r.  I'enncll,  51  :\re.  52.     p.  2s4. 
Wood  ,;.  Plifcnix  Itis.  Co.,  '47  Leg.   Int. 

14S.     p.  255. 
Wood  c.  l'ouu;hkecpsie,  etc.,  Ins.  Co.,  32 

N.  Y.  I'll'.t.     p.  2ii7. 
Wood  r.  Siuitli.  2-!  Vt.  70.;.     p.  5;). 
Wood  c.  Wood,  1  Car.  it  l\  59.     pp.  3,  8, 

33.  30;l. 
VVoodnirt'  0.  Merchants'  Bank,  25  Wend. 

ii73.     pp.  208.  209,  42'.).  475,  4S4. 
Woods  r.  Galbralth,  2    Yeates,  300.     p. 

333. 


;    Woods  V.  Half,  44  Texas,  033.     p.  315. 

Wooly  1-.  Idle,  4  Hurr.  15'.)2.     p.  403. 
,    Woriledge   i:  Manni)ig,   1    H.  Black.  53. 
.        p.  331. 

Wortliington  v.  Curd,   15   Ark.   401.     p. 
I       -WX 

Woithington  v.  Warrin>,'toM,  8  C.  B.  134- 
p.  370. 

U'ray  c.  Wray,  32  Iiid.  12i).     p.  305. 
I    Wright,  y.  Caldwell,  3  Mirh.  51.     pp.108, 
I        210.  218. 

Wright  V.   Campbell,  4   Burr.  2040.     p. 
2;.)i. 
}    Wright  V.  Central  11.  Co.,  10  Gu.  38.     p. 
'       324. 
I    Wright  y.  Hart,  18   Wend.  449.     p.  300. 

^V  right  V.  Holcombe,  0  Upper  Canada  C. 
P.  5:11.     p.  25L 
;    Wi  ighl  0.  Snell,  5  Barn.  &  Aid.  350.     p. 

239. 
!    W.'.er  r.  Andrews,  13  Me.  108.     p.  333. 

Wynian  y.  Fiske,  3  Allen,  '238.     p.  306. 

j    Yarborough  v.  Bank  of  England,  16  East, 

»;.     p.  24L 
j    Yatos  r.  Dull",  oCar.  «fcP.  309.     p.  403. 
\    Yates  i:  Pyni,  6  Taun.  440.     pp.  8,  192, 
;       348,302,447. 
Yeiiton  V.  Baidc  of  Alexandria,  5  Cranch, 

49.     pp.  5;i,  122,  205. 
Young  i\  Adams,  0  Mas.'".  157.     p.  211. 
You!ig  V.   Axtell,  2   H.  Black.  242.    p. 

284^ 
Y'oung  0.  Cole,  3  Bing.  N.  0.  724.    pp. 

284,  287. 
Young  V.  Frost,  5  Gill,  287.     p.  364. 
Young  V.  Siabelin,  34  N.  Y.  258.     p.  4G8. 
Yuuqua  V.  Nixon,  1  Pet.  0.  Ct.  224.    p. 
317. 

Zeigler  v.  Gray,  12  Serg.  &  R.  42.    p. 

315. 
Zerrahn  v.  Ditson,  117  Mass.  553.     p.  894. 


'iU- 


.H 


i  M 


H'i 


I. 


w 

.i'i 

1 

M] 

'    tJ 

1 

f 


!.]( 


i  ■!  Ml 


Nit  'I 

liv'i 


;'l 


■I|i 


r     1: 


■ 

I 


i 


THE    LAW 


O  F 


USAGES     AND     CUSTOMS. 


CHAPTER     L 

ON  TITR   REQUISITES   TO  THEIR   VALIDITY. 


Ili.t'strativk  Cases:  — 

1 .  Sewell  V.  Corp.  —  A  usage  must  be  established. 

2.  Wood  V.  Wood.  —  A  usage  must  be  certain  and  uiiil'onn. 

3.  Womersh'ii  v.  DaUij.  —  A  custom  must  be  giMuinil. 

4.  Stevens  \.  Reeves.  —  A  usage  must  l)e  known. 

5.  Sciirjar  V.  Slif/erland.  —  .\  custom  ujusi  be  moral. 

6.  Paxton  v.  Gourtnatj.  —  A  usage  must  be  reasonable. 

7.  flfctcalf  V.  Weld.  —  Sanit'  principle. 

NoTKS:  §1.  Dillnitlons  —  The  coninion-law  customs. 

2.  Tlic  customs  of  morchauts. 

3.  Local  customs  of  trade. 

4.  Contradictory   decisions  —  Dislike  of   Mie  judges  to  extend   the 

odlcc  of  a  usage. 

5.  Different  views  enlertiiined  by  other  judges. 

6.  Till'  different  liinds  of  usages  and  customs. 

7.  A  common-law  custom  must  be  ancient. 

8.  But  a  particular  custom  or  usage  of  trade  is  valid   if  "  estab- 

lislied." 

9.  A  common-law  custom  must  be  certain. 

10.  Lilcewise  a  usage  of  trade  must  be  certain  and  uniform. 

11.  A  custom  must  t»c  compulsory. 

12.  A  custom  must  l)e  (consistent. 

13.  A  custom  must  be  continued. 

14.  Acts  of  accommodation  or  indulgence  do  not  make  a  usage. 

15.  But  cannot  be  clianged  to  the  prejudice  of  others  in  some  cases. 

16.  A  common-law  custom  must  be  general. 

17.  How  far  generality  is  rc(|uired  of  a  particular  custom. 


18.  A  usage  must  be  known. 


^f 


(I) 


! 


No-i-iS! 


ON    THE    KKQUIS1TE8    TO    THEIR    VALIDITY. 


Sewell  V.  Corp. 


§10. 
20, 
21. 
22. 
23. 
24. 
25. 
26. 
27. 
28. 
29. 
30. 
31. 
32. 
83. 
34. 
35. 
36. 
37. 
38. 
39. 
40. 
41. 
42. 
43. 
44. 
45. 
46. 
47. 
48. 

49. 


Usajifes  not  known  to  parties  not  binding. 
Usuj^CH  of  the  stock  exclianf:;t'. 
Customs  of  servants  of  corporations. 
Customs  of  mercliants  to  ciiarge  interest. 
Customs  of  banks. 

Customs  of  particular  trades  and  professions. 
Particular  customs  not  known  to  insured  inadmissible. 
And  so  of  particular  customs  not  known  to  insurer. 
Knowledjiie  of  custom  —  When  not  presumed. 
Person  ignorant  of  a  usage  cannot  take  advantage  of  It. 
Proof  of  knowledge  by  a  single  instance. 
A  custom  must  be  moral. 

A  custom  must  be  peaceable,  and  acquiesced  in. 
A  custom  must  be  reasonable. 

("ustoms  beneficial  to  the  public  good,  tliough  injurious  to  some. 
Customs  not  unreasonable  if  simply  inconvenient. 
Customs  injurious  to  the  public  bad,  though  beneficial  to  some. 
The  existence  of  unreasonable  modern  usages  doubted. 
Usages  prima  facie  reasonable  — The  test  of  their  reasonableness. 
Unreasonable  usages  —  Betweeen  vendor  and  purchaser. 
Same  —  Banks  and  banking. 
Same  —  Carrier  and  customer. 
Same  —  Insurance. 

Same  —  Master  and  servant :  employer  and  employee. 
Same  —  Public  officers. 
Same  —  Principal  and  agent. 

Same  —  Miscellaneous.  « 

The  custom  of  a  particular  person  or  the  habit  of  an  individual. 
Cases  where  this  proof  was  rejected. 

Custom   docs  not  make  a  parlicuiur  mode  of  executing  a  con- 
tract essential. 
Entries  made  in  the  usual  course  of  business. 


1.    A   USAGE    MUST  BE   ESTABLISHED. 

Sewp:ll  V.  Corp.* 

Before    Best,,   C.  J,,  in  the  English  Court   of  Common  Pleas,    TrirJty 

Term,  1824. 


A  usage  applicable  to  a  particular  trade  or  profession,  if  eutiiblished,  need  not  be  anciciu. 

Assumpsit  by  a  veterinary  surgeon  for  attendance  and  medicines  fur- 
nished to  the  defendant's  horse.  A  (iortifioate  of  the  plaintiff's  haviiii; 
attended  lectures  at  the  veterinary  college,  signed  by  Mr.  Coleman, 
the  professor  there,  and  several  others,  was  tendered  in  evidence  on  the 
part  of  the  plaintiff. 

*  Reported  1  Car.  *  I*.  :IH'J. 


1: 
I      i 


A   USAGE    MUST    BE    ESTABLISHED,  CERTAIN,  UNIFOKM. 


Illustrative  Casos. 


o  some. 

some. 

bleness. 


lividual. 
T  a  con- 


Bkst,  C.  J.,  refused  to  receive  it,  on  the  ground  that  it  did  not  come 
from  any  public  body  l<nown  to  the  law. 

Mr.  Coleman  was  called  as  a  witness,  and  asked  by  the  plaintiffs 
counsel  whether,  to  his  knowledge,  it  was  the  custom  to  pay  veterinary 
surgeons  for  attendance  as  well  as  medieines. 

Vanghan,  J^erjt.,  objected.     There  is  no  custom ;  this  is  all  modern. 

Best,  C.  J.  — They  do  not  mean  a  custom  whereof  the  memory  of 
man  runneth  not  to  the  contrary  ;  but  if  tlujre  is  a  geneial  usage  appli- 
cable to  a  particular  profession,  parties  employing  an  individual  in  that 
profession  are  sup|)()sed  to  deal  with  him  according  to  that  usiige.  Yon 
i.^ay  cross-examine  as  to  the  extent  of  the  usage.  With  respect  to  vet- 
erinary surgeons,  I  know  of  no  law  that  applies  to  tlieiu  particularly. 
If  there  is  no  contract,  they  must  go  on  a  quatitutn  meruit.  There  is  a 
usage  for  a  broker  to  have  comniissi(;n.  If  there  is  a  usage;  here,  it  is 
evidence  to  regulate  the  claim.  I  see  no  objection  to  the  general  ques- 
tion as  proposed. 

Mr.  Coleman  then  stated  that  the  general  rule  was  to  charge  for 
attendance  when  there  was  not  much  medicine  required. 

Ekst.  C.  J.  — Such  a  usage  is  too  uncertain. 

The  plaintiff  then  went  on  a  qudutnm  laerait,  and  proved  several 
attendances. 

VaiKjIiitn,  Serjt.,  contended  that,  by  analogy  to  the  case  of  apothe- 
caries, the  jury  could  not  legally  give  anything  for  atteudances. 

The  z\nn  of  £112.s  6d,  for  the  medicine  furnished,  had  been  paid 
into  court. 

Best,  C.  .T.,  left  it  to  the  jury  to  say  whether  that  sum  was  or  was 
not  sutlicieui  for  the  plaintiff's  services  and  medicines. 

Verdict  for  the  plaintiff.     Daniayes.  17 a  Ud. 


\'f 


m 


m 


Trinity 


2.   A    USAGE    MUST    HK   CEllTAIN    AND    UNlFOR\., 

Wood  v.  Wood.* 


M 


anoiciu. 

lies  fur- 

havini; 

loleman. 

on  the 


B<f(ire  Burroiiyh.  ,/.,  in  the  EiKjlish  Court  of  Common  Pleus,  Michael- 
mas Term,  1823. 

The  usage  of  a  particular  trade  must  be  certain  and  uniform  to  make  it  binding  on  transac- 
Uous  in  tbat  trade. 

TiiovKK  for  cloth.     On  tfie  part  of  the  plaintiff,  after  proof  of  the 
hiuikruptcy,  it  was  proved  that  at  the  time  of  his  bankruptcy  the  bank- 

*  Reported  1  t'^ir.  &  P.  59. 


IT      '' 


ON    THE    KKQIIIHITKS    TO    THEIK    VALIDITV. 


Wood  fl.  Wood. 


nipt  had  his  cloth  in  his  |)(>sscssion.  he  trading  in  that  article,  and  that 
the  defendant  got  it  into  liis  i)f)s.-io.ssii)n  and  would  not  give  it  up.  The 
defence  set  up  was  that  the  defend.-iiil,  who  was  the  owner  of  the  cloth, 
liad  sent  these  cloths  to  the  bankrupt  for  inspo(!tion,  and  tliat  he  was, 
by  the  usage  of  the  cloth-trade,  to  send  an  answer  to  the  defendant 
whether  he  would  buy  them  or  not,  and  that  if  i»o  did  not  in  three  (hiys 
say  that  he  would  buy  them,  the  seller,  by  the  usage  of  the  cloth-trade, 
was  to  send  for  and  receive  them  l)a(^Ic  again.  To  prove  this  usage  of 
tiie  trade,  several  witnesses  were  called,  all  of  whom  spoke  of  a  usage 
in  the  cloth-trade  to  send  goods  for  inspection  ;  but  soini^  of  them  spoke 
of  throe  days  as  the  time  within  which  the  buyer  was  to  say  whether  he 
would  luiy  them  or  not;  others  spoke  of  a  week,  and  one  of  a  month, 
as  the  time. 

Pell,  Seijl.,  in  reply,  relied  on  a  case  being  made  out,  under  the 
statute  of  21  Jaines  I.,  c.  19,  of  reputed  ownership  in  the  bankrupt, 
and  cited  a  dichim  of  Lr  Bi.anc,  J.,  in  which  the  judge  laid  down  that 
if  a  trader  has  got  goods  in  his  possession,  with  the  option  of  returning 
the  goods,  but  does  not  return  them  befoi-e  he  be(;omes  a  b.'uikrupt,  the 
goods  will  pass  to  his  assignees,  though  tliey  made  no  part  of  the  bank- 
rupt stock. 

BiutitouGH,  J.  —  If  goods  are  in  the  hands  of  a  bankrupt  at  the  time 
of  his  bankruptcy,  generally  speaking,  they  will  go  to  his  assignees, 
under  the  statute  of  James,  though  there  is  no  pretence  of  any  sale  to 
the  bankrupt,  or  that  they  are  really  his  property.  Special  facts  may 
take  a  case  out  of  this  general  state  of  things.  It  has  been  contended 
that  in  the  cloth-trade  there  is  a  certain  usage  relative  to  the  return  of 
cloth  sent  for  inspection.  Such  a  usage  must,  to  be  binding,  be  uniform 
and  universal,  and  not  merely  the  way  of  dealing  at  particular  houses. 
It  must  be  so  universal  that  every  one  in  the  trade  must  be  taken  to 
know  it.  If  it  is  not  so,  it  is  no  usage  at  all.  Here  there  seems  to  he 
no  certain  rule  or  usage,  for  the  witnesses  do  not  give  it  as  certain  or 
uniform ;  but  if  there  be  such  a  usage,  I  am  of  opinion  that  it  would 
take  the  case  out  of  the  statute  of  James. 

Verdict  for  the  plaintiff".     Daviages,  £141. 


Aii 


* 


A    CUSTOM    MUST    BE    (lICNEitAL. 


Illustrative  Ciises. 


d  that 
The 

cloth, 
le  was, 
endaiit 
20  (lays 
i-trade, 
sage  of 
a  usage 
n  spoke 
jtlior  he 

month, 

ider  the 
inknipt, 
)\vn  that 
etnrning 
rupt,  the 
,he  bank- 


3.     A   CUSTOM    MUST    BK    (JKNKIIAL. 
WOMEKSLEY    V.   DaLLY.* 

Iv  the  EntjHsh  Court,  of  Kxdieqmr,  April,  1857. 

Sir  B'ur.DioiucK  I'oi.mx'K,  Kt.,  Chief  Baron. 
"    Jamks  rAI£KK,  Kt., 
"    Kowuii)  Hall  Ai.dkkson,  Kt., 

"    Thomas  Joshua  Plait,  Kt.,  Hiii'uns. 

"    Samlkl  Mahtin,  Kt., 
"    Gkohck.  Willlvm  \VM,.s!iioiir,  I{i:am>v'''i  »,  Kt., 

The  rule  of  law  ;l^  li  iiiiiioituij;  int.)  tlie  tonus  of  ii  tuiiiiiicy  the  custom  of  the  country  docf 
not  ailinit  of  i-vnit e  of  the  iis:igu  of  a  iiarijc-ular  estate  or  the  iiroixM  tj  of  a  particu- 
lar individual,  however  exten.sive  it  may  be. 

This  was  an  aotioa  by  an  iml'^oing  tenant  against  tenants  in  common, 
who  were  assignees  of  the  reveision  of  part  of  tlie  demised  premises. 

Tlie  declaration  stated  that  the  plaintiff  was  tenant  to  the  defendants, 
on  the  terms  that  he  should  cultivate  according  to  the  custom  of  the 
('oiiiitiy.  iind  that  they  should,  on  the  termination  of  tlie  tenancy  hy 
notice,  pay  to  him  such  reasonable  allowances  as  he  should,  according 
to  the  custom  of  the  country,  be  entitled  to  receive  as  outgoing  tenant, 
in  respect  of  work,  etc.  ;  and  then  averring  that  the  defend.nnts  termi- 
nated the  tenancy  by  notice,  and  that  he  was  entitled  to  receive,  accord- 
ing to  the  custom  of  the  countr}',  a  certain  sum  for  work,  etc. 

Pleas  denying  the  plaintiff's  temincy  to  the  defend;uits  on  the  tenns 
stated,  and  d(>nying  that  he  w:u5  (Mititled  to  such  allowanct;  as  alleged. 

On  the  trial  before  IMartix,  li.,  at  the  York  Ficnt  Assi/.es,  it  appeared 
that  the  plaintiff  had  been  for  fifty  years  tenant  of  a  farm  of  forty 
acres  belonging  to  an  extcMisive  estate,  the  propeily  of  a  family  of  the 
n:imc  of  Thornliill,  and  that  the  defendants  had  purchased  certain  por- 
tions of  the  estate,  including  about  sixteen  acres,  portions  of  the  farm 
in  question,  subject  to  the  condition  of  payment  to  the  outgoing  ten- 
ants of  the  amount  of  valuation,  according  to  the  custom  of  the  coun- 
try. The  defendants  proposed  to  offer  evidtmce  of  a  usage  on  the 
Thornhill  estate  that  in  all  lettings  it  should  bi;  understood  that  the  ten- 
ants should  keep  one-third  of  their  farm  arable  and  two-thirds  in  grass, 
and  pay  £5  an  acre,  on  leaving,  for  any  excess  beyond  that  proportion 
of  arable  over  grass.  The  learned  judge  rejected  the  evidence,  it  not 
appearing  that  the  plaintiff  was  cognizant  of  the  alleged  usage.  The 
plaintiff  had  a  verdict,  and  the  points  were  reserved. 

*  lleportcd  20  I..  J.  (Exch.)  219. 


'M 


m 


Hi 


1! 


m^ 

rr 

'•        ;     *  J 

r 

f 

1 

'    If'';' 

\M 

'i'V 

j; 

,    -j 


i    I 


ON  TiiK  KKyiJisnios   ro   riiKiu  valii>ity. 


Stevens  v.  Reeves. 


Knoidi'H^  ioT  the  dofoiulaiit,  novf  rnovi'd  for  a  niK'  to  set  susidc  the 
verdict,  !Uid  for  a  new  trial.  'Flit'  evidence  of  the  usajj^e  was  achnisHible, 
on  the  .same,  principle  as  that  on  which  evidence  of  the  '■  custom  of  the 
coujjtry"  is  admitted. 

IV)m,()(;k,  C.  B.  —  No.  Th(!  law  takes  co>ifni/,anco  of  the  divisions 
of  the  coimtry  into  counties  or  i)anshes,  wliicii  are  lef^al  and  public 
divisions,  l>ut  not  into  properties  or  estates,  which  are  purely  private 
in  their  nature.  Estates  may  be  very  small,  and  if  lar<;c  are  only  acci- 
dentally so.  It  would  he  impossible  to  draw  any  le<j;al  distinction  be- 
tween an  estate  of  one  hundred  acres  or  of  one  hundred  thousand, 
and  then;  would  be  no  legal  presumption  of  notoriety  arisino-  from  the 
fact  of  usaf^e  !is  to  terms  of  lettinf^  on  a  ])articular  estate.  Non  constat 
that  the  party  b(HU)minu;  tenant  upon  it  for  the  first  time  would  hear  of  it. 

Knowlas.  —  There  was  evidence  for  the  jury  that  the  plaintiff  must 
have  heard  of  it. 

Pollock,  C.  B.  —  Not  a  word  appears  to  have  been  said  about  it. 

Kiiowles.  —  Assuming  that  the  tenant  heard  of  it,  his  nc^t  saying  any- 
thing about  it  would  be  evidinice  of  a  tacit  assent  to  it. 

BuAMWKi.L,  B.  —  No  more  than  if  it  were  proved  that  a  defendant 
sued  for  a  debt,  always  in  other  cases  had  dealt  on  ti^ms  of  credit. 
That  might  be  some  moral  evidence  that  he  had  done  so  on  the  particu- 
lar occasion  in  question,  but  it  would  be  no  legal  evidence. 

Per  Curiam.  — The  evidence  was  clearly  not  admissible.     It  was  only 

as  to  the  |)racticeof  a  particular  person  in  letting  his  faiins  —  a  practice 

not  proved  to  have  been  known  to  the  tenant.     That  being  so,  the  other 

point  does  not  strictly  arise. 

Hale  refused. 


4.  .4  usa(;k  must  be  known. 

SiKVKNH    V.    HlOKVKS.* 

In  the  Supreme  Judicial  Court  of  MassachnsettK.  November  Teria,  1829. 

Hon.  Isaac  Parkku,  Vhicf  Justice. 
"      Samukf.  Putnam,     \ 
'*      Samiiki,  S.  WiLOK,    \  Judges. 
"       Maucus  MoliTON,      J 

1.  A  person  entin-ing  into  a  contract  is  not  bound  by  the  usage  of  a  particiilar  biii^incss,  un- 
less it  is  Ko  general  a.s  to  furnish  a  prcsunijilion  of  knowledge,  or  it  is  proved  that  he 
was  aciiiiainlL'  I  witli  it. 

*  llcported  0  Pick.  Iit8. 


-1 


.-* 


A    U8A(JK    MUST    BE    KNOWN, 


Illiistriitive  (Jasea. 


a.  It  wa8  a  rule  in  a  cotton  factory  in  A.,  and  some  neiKlilmrJnt;  fiicioncK,  that  no  person 
eiii|ili>ye(l  should  leave  their  Hcrvieo  without  giving  a  fnituigliCs  noiice  <if  liis  intention 
to  i|iiit.  A  weaver  who  did  not  know  of  this  rule  worked  in  the  I'actory  wllhoiit  any 
aKrt'enient  H»  to  the  terms  of  service,  but  was  paid  l)y  Hie  yard  for  the  work  which  he 
turned  out.  lie  left  the  factory  without  K'ving  any  |irevlous  notice.  Ilrht,  that  the 
rii'e  was  not  binding  on  him,  and  that  he  therefore  was  not  liable  tu  an  ae.iion  for  dam- 
ages by  the  owner  of  the  factory  for  thus  leaving. 

This  was  axsumjjsU  for  a  breach  of  contnict  of  the  dofciuhint  in 
quilting  the  service  of  the  phiiiitiff,  in  which  he  was  eiigiiot'd  as  a 
weaver,  without  giving  a  fortniglit's  previous  notice. 

In  the  Coinmon  Tleas,  where  the  parties  agreed  upon  a  case,  a  non- 
suit was  directed ;  and  the  case  was  brought  before  this  court  by  ex- 
ceptioiis. 

The  facts,  as  agreed  by  tlie  parties,  are  as  follows:  — 

On  the  ;kl  of  July,  1828,  Reeves,  the  defendant,  came  to  the  woollen- 
factory  of  the  plaintiff,  in  Andover,  and  askcMl  the  oxcrseer  of  the 
weaving-room  "  if  he  had  a  loom  idle,"  and  on  Ix^iiig  an.svvered  in  the 
atfinnative,  engaged  to  work  on  a  loom  there.  On  tlie  second  week  of 
Reeves'  engagement  he  left  his  work  at  the  fact(jry  witliout  notice  or 
leave,  and  was  altsent  two  or  three  days,  and  then  returiu^d  and  resumed 
his  work.  Reeves  was  paid  for  his  work  by  the  piece,  at  the  same  rate 
a  yitrd  as  the  other  weavers  in  the  same  factory.  When  he  had  earned 
abdut  ten  dollars,  Stevens,  at  his  request,  |)aid  him  that  amount.  At 
the  time  Stevens  made  this  payment  he  knew,  but  not  from  Reeves  him- 
self, that  Reeves  had  engaged  a  loom  in  another  factory.  About  the 
21st  of  July,  Reeves  left  the  employment  of  Stevens,  without  his  consent 
and  Avithout  ha^'ing  given  any  previous  notice  to  .Stevens. 

No  agreement  was  made  between  the  parties  as  to  the  price  that 
Reeves  should  receive  for  his  labor,  nor  as  to  the  time  that  he  should 
continue  in  Stevens'  emiiloyment.  other  than  may  l)e  implied  from  the 
circumstances  of  the  case.  It  was  proved  that  it  was  the  usage  in 
Stevens'  factory  to  give  a  fortnight's  notice  before  quitting,  and  this 
was  generally  understood  by  the  workmen.  But  Reeves  had  no  infor- 
mation given  hira  of  this  usage,  and  there  was  no  notice  of  it  posted 
up.  and  is  not  usually  communicated  to  those  who  labor  in  the  factory, 
at  the  time  of  their  engagement.  It  was  proved  that  there  was  a  similar 
usage  in  other  factories  in  the  vicinity,  and  that  notice  of  it  was  com- 
monly posted  up  with  other  rules.  In  every  factory  there  are  certain 
rulis  for  the  regulation  of  the  workmen  in  respect  to  their  quitting  the 
fuet(jry. 

Reeves  constantly  follows  the  occupation  of  a  weaver,  but  at  the  time 
when  he  was  engaged  by  the  plaintiff  he  had  just  arrived  in  this  country. 


I 


I   '_ 


m 


HI 


; '  fi 


m 


ON    THE    KKQUISITES    TO    THEIR    VALIDITY. 


Stevens  v.  Reeves. 


Stevens  sustained  an  actiiiil  diiniagc,  in  co'isciiiicnce  of  Reeves'  quitting 
his  servicer 

Tlie  case  was  argued,  in  writing,  by  iSpauldiitg  for  the  plaintiff  and 
Croab)/  for  the  defendant. 

jSjxnddivg  contended  that  wlien  .he  defendant  entered  as  a  weaver 
into  the  service  of  the  plaintiff,  as  he  made  no  specilic  contract,  he  im- 
pliedly agreed  to  serve  upon  the  same  terras  as  the  other  persons  em- 
ployed in  th''  same  factory,  and  to  be  bound  by  the  rules  of  the  factory  ; 
and  that  tlie  defendant,  by  leaving  without  iu)tice,  broke  his  contract, 
,'ind  thereby  becainc  liable  to  pay  the  plaintiff  the  damages  which  it  is 
admitted  the  plaintiff  suffered  in  conseijuence.     It  is  obvious  that  the 
defendant  knew  of  the  usage  of  the  factory  in  this  rcsj)ect ;  otherwise  he 
would  not,  when  he  applied  for  his  pay,  have  concealcil  his  intention  of 
leaving.     But  \ut  is  bound  by  the  usnj^e,  whether  he  in  fact  knew  it  or 
not.     Every  factory  has  rules.     If  he  neglected  to  ascertain  the  rules 
of  the  factory  in  which  he  was  going  to  serve,  it  was  his  own  fault. 
The  pay  which  he  received  was  calculated  according  to  the  rules  of  the 
factory,  as  he  made  no  si^ecial   agreement  on  the  subject,  and  he  no 
doubt  could  have  recovered  it  according  to  that  rate.     If  he  is  entitled 
to  the  bf'iielit  of  the  rules,  he  ougiit  to  be  bound  by  them.     The  usage 
of  an  individual  is  binding  on  any  one  dealing  with  him,  who  is  ac- 
quainted with  it.     But  the  practice  of  giving  notic '  is  not  conllned  to 
the  plaintiff's  factoiy:  it  is  a  geiu>ral  usage  in  the  vicinity.     It  is  a  rea- 
sonable  usage,   and  for  the  benefit  of  1/oth  parties.     Where  a  person 
enters  into  a  contract  in  a  particular  business,  the  leg.il  effect  of  it  is 
regulated  by  the  usages  of  this  business,  even  where  the  party  is  in  fact 
ignoi-ant  of  ihem.     The  present  case  is  somewhat  like  that  of  a  person 
dealing  with  a  bank.     He  is  bound  by  the  usage  of  the  bank,  even  where 
it  changes  the  legal  effect  of  the  contivict.     The  case  is  also  analogous 
to  that  of  landlord  and  tena?it.     The  right  to  notice  to  ([iiit  arises  from 
the  mere  existence  of  the  relation,  without  any  speei;.i  ngncnu'iit;   and 
so,  in  particular  places,  both  landlord  and  tenant  arc  bound  by  the  ii:jiiges 
of  the  place  in  which  the  land  lit>s. 

Crn.ihif.  — The  ride  of  th<^  plaintiff's  factory  on  the  subject  of  notice 
cannot  affect  tlu>  ('onlra('t  of  service  entered  into  by  the  defendant,  as 
it  was  not  a  well-established,  general,  and  unifoiiu  usage.  The  evidence 
shows  the  usage  to  exist  only  in  the  plaintiff's  faotoiy  aid  others  in  the 
immediate  vicinity.*  The  private  usiiges  of  individuals  and  corpora- 
tions—  such  as  of  particular  carriers,  banks,  and  merchants  —  are  bind- 
ing on  a  person  who  deals   witii  tlu'in  only  where  he  is  acquainted  with 


'  :  StiifU.  on  Kv.  4r)l.  45:1;  Wiiod  c.  Wood, 
1  Ciir.  *  P.  W):  Vales  ,••.  r.vm,  (i  Tiiun.  un: 


Ph.  or.  Ev.  4(11';  Smith  i.   Wright,  1  Oaiuos, 
4;J;  llivrber  v  Uriico,  ;1  (Joiin. !). 


A    CU.STOAi     MUST    BE    IMOKAI-. 


9 


Illiisli-utive  Cases. 


those  usages.     In  the  presont  ciisc.  the  (kfciilMiit,  \v!io,  it  is  clear,  did  not 
know  the  rule  of  the  plmntiff's  factory,  could  not  be  bo.iiid  by  it. 

il)inion  of  tiie  court. 


Paukeii,  C.  J.,  drew  up  tlic 

This  action  is  brought  to  recover  damages  against  the  ih'fendant  for 
(Uiitting  the  phiintiff's  service  in  viohilioa  of  an  .'tllogcd  c<ii.(i':ict  tiiat, 
having  onlered  into  tlie  service,  he  would  not  quit  it  without  leave,  un- 
less he  had  given  a  fortnight's  notice  of  his  intention  to  (juit. 

It  does  not  appear  that  the  defendant  engaged  his  services  for  any 
length  of  time.  He  asked  leave  to  worlc  at  an  unoccupied  loom; 
worked  a  few  days,  went  away,  returned  in  a  short  time,  and  worked 
upon  another  h-om.  He  was  to  be  paid  aceordiug  to  the  work  turned 
out,  and  not  by  the  year,  month,  or  day.  There  was  no  stipulation  for 
any  particular  time ;  so  that  there  is  no  express  or  im[)lied  contract  that 
lifi  would  remain  for  any  certain  time,  unless  su.,a  contract  is  to  be 
implied  from  what  is  set  up  in  evidence  as  a  usage  of  this  and  the  neigh- 
boring factories,  that  all  who  are  employed  shall  be  held  to  remain  untU 
a  fortnight  after  they  give  notice  of  their  intention  to  (put.  In  order  to 
iuak(>  tliis  a  part  of  the  contract,  as  the  usage  supi)osed  is  a  i)articular 
one,  and  not  a  general  custom,  it  sliould  have  appeared  that  the  defend- 
ant knew  of  the  usage  when  he  entered  upon  the  work,  or  before  he  left 
it.  This  is  recfuired  iu  order  to  give  eiTeet  to  a  particidar  usiige  so  as 
to  operate  u[)on  a  contract.  It  is  so  with  the  usnge  of  banks,  and  all 
other  usages  not  of  so  g\'neral  a  nature  as  to  furnish  a  presumption  of 
knowledge.  There  is  no  such  evidence  iu  this  case;  on  the  contrar}"^,  it 
appcar.s  that  the  defeudnnt  was  a  strange;:-  in  the  country,  tiiat  he  was 
not  informed  of  any  usage,  and  that  no  ui-tv.^  of  it  was  posted  up 
among  the  i-ules  and  orders  of  the  factory. 

The  cases  cited  are  all  either  of  general  usages  or  ol  particular  cus- 
toms, of  which  the  party  to  be  bound  was  prov<-d  or  presumed  to  have 
notice. 

The  pUiintiJ}'  mast  be  iiijii.<ai/ed. 


In 


5.   A    (HJS'lOM    MUST    UK    MORAL. 
SkAGAU   v.   Sl.KiKin.AND.* 

Tn  the  S'lpninc  Court  of  New    York^  Novciiihcr,  IS'04. 

Ill  iiri  11111  liy  one  for  the  ."Ctlurlion  of  liis  (liuiglUor,  ii  custom  of  "  liunitlirig  "  — i  p  ,  for 
IH'iMiiis  courting  to  sleep  together—  camiot  ho  set  up  hy  him  to  excuse  his  connivance 
ill  the  intercourst. 


*  IJciiorti.'il : 


.iiiCH  -iKt. 


H 


t',* 


10 


ON    THE    REQUISITES   TO   THEIR   VALIDITY. 


Seiifj^iir  V.  SligiTland. 


■'.!<■         |: 


This  was  an  action  for  debauching  the  plaintiff's  dauf^hter,  whoreby 
he  lost  her  service  and  was  put  to  expense  in  her  lyin}>;-in,  etc.  The 
deft'udant  applied,  on  a  case  made  and  submitted  without  ar<>uiuent,  to 
set  aside  tlu;  verdict,  which  was  for  $450,  as  beinj?  contrary  to  law, 
against  evidence,  and  because  the  damages  were  excessive. 

At  the  trial,  the  plaintiff's  principal  witness  wtis  his  own  daughter. 
She  testifu'd  that  the  det\'ndant,  after  a  promise  of  marriage,  frequently 
lay  with  hei,  and  at  leiigtii  got  her  with  child;  that  long  before  the 
period  the  {>laintiff  and  his  wife  knew  that  she  and  the  defendant  slept 
together  at  their  house,  without  forbidding  or  discountenaiuiiig  the 
intei'course ;  that  before  her  pregnancy  her  mother,  in  particular,  had 
twice  seen  them  in  bed  together. 

Per  Curiam.  —  From  the  summary  of  the  testimony,  we  are  con- 
strained to  say  there  ought  to  have  been  a  venliet  for  the  defendant. 
In  ar^tions  of  this  nature,  the  daughter  is  supposed  to  be  viohiU'd  with 
force,  against  the  will  and  consent  of  the  father.  It  is  then,  :iiid  then 
only,  that  he  is  entitled  to  couiiu-nsation  for  the  loss  of  her  service. 
But  when  he  consents  or  connives  at  the  criminal  intercourse,  he  seeks 
with  very  ill  grace  a  retribution  in  damages.  Von'Jtti  not  fit  injuria. 
If  he  be  not  parlicepH  criminis,  he  is  something  very  like  it.  His  tvs- 
surance  in  coming  here  for  redress  can  be  equalled  only  by  the  indiffer- 
ence with  which  he  submitted  to  the  sacrifice  of  his  daughter's  chastity. 
Wo  lay  out  of  view  the  custom  which,  it  is  agreed,  prevails  in  that  part 
of  the  country  for  young  people  who  are  com  ting  Lu  sleep  together; 
nor  can  we  conceive  why  this  custom  has  been  pn  ssed  into  the  plain- 
tiff's service.  If  it  furnishes  an  excuse  for  his  carelessues^'  or  his  daugh- 
ter's indiscretion,  it  is  some  apology  also  for  the  defendant.  At  any 
rate,  parents  who  C(Muitenance  or  take  no  pains  to  abi  lisii,  at  least 
within  their  own  walls,  a  practice  so  indecorous  or  dangerous  have  no 
right  to  coiuphiiii,  or  ask  satisfaction  for  conseimenees  which  must  so 
natuially  follow  from  it.  Nor  is  it  an  excuse  for  the  i)arent  to  say  that 
promises  of  marriage  had  been  exchanged.  If,  under  such  engagement^, 
he  thought  there  was  no  harm  in  [mrmitting  what  nothing  but  wedlock 
itself  should  have  sanctioned,  he  knew  the  risk  to  which  his  daughter 
was  exposed.  These  vows  might  be  Itroken,  or  the  young  lady  (as 
there  is  too  much  reason  to  believe;  was  the  ease  here)  migiit  liy  her  own 
indiscreet  l>ehavior  justify  the  loviu"  in  trausferring  his  siffi-ctions  to 
some  other  object.  On  the  dautrhter's  behavior,  however,  it  is  not  neces- 
sary n(tw  to  dwell,  as  we  arf  -.lot  showing  what  measure  of  damages 
would  have  been  just,  but  that  lone  at  all  ought  to  have  been  given. 
This  will  more  pi'operly  beconu  a  subject  of  iiKpiiry  if  siie  sh.all   think 


A    USAC5E    MUST    BE    REASONAULE. 


11 


Illustrative  Cases. 


proper  to  bring  an  action  for  a  breach  of  tlie  marriaj^e  promise.  The 
f'lther's  conduct  is  more  immediately  in  question  in  this  suit;  and  as 
tli.it  was  in  tlie  higln'st  degree  exceptionable,  —  as  he  consented  to  it,  if 
he  did  not  encourage,  knew  of,  and  took  no  means  to  prevent  the  connec- 
tion which  lias  i)roducod  this  action,  —  we  think  it  cannot  be  maintained. 
Tlit^  verdi(!t  is  tlicrefore  against  law,  and  a  new  trial  must  be  had.  The 
ju<lgt'  having  refused  to  nonsuit  the  plaintiff,  as  he  ought  to  have  done, 
the  costs  of  the  former  trial  must  abide  the  event  of  the  suit. 

2^ew  trldU 


C.    A    US  AGE    MUST   BK    REASONABLE. 
PaxTON    v.  CoiJKTNAY.* 


)art 
ler; 
ain- 
uigh- 
any 
east 
no 

St   80 

that 
tit^, 
ock 
liter 
(as 
own 
s  to 

(H'S- 
llgl-S 

ven. 
link 


Before  Mr.  Justice  Keating,  in  the  Court  of  Common  Plean,  London 
Sittings,  Trinity  Term,  I860: 

A  custom  or  tisnj^o  of  trade  must  be  roasoiiable,  and  is  not  so  if  it  la  such  as  honest  and 
ri^ht  tnindiMl  n\en  would  tleem  unfair  aixl  unrighteous.  So  held  of  a  iis;igc  of  under- 
takiM's  to  charge  lliu  original  cost  uf  articlox  used  at  any  funeral,  althougli  lliuy  might 
be  used  at  other  funerals. 

Action  against  executors  for  work,  etc.,  done  by  the  plaintiff  as  an 
umlertaiver.     Plea:  Never  indebted  except  as  to  £75  paid  into  court. 

Ku'jwles  and  Willoughbti,  f of  the  ,)laintiff;  Edwin  James  and  T.  J. 
Chdk,  for  tlie  defendants. 

The  dispute  Iteing  wholly  as  to  amount,  and  turning  on  the  i)i()priety 
of  certain  charges  on  the  pail  of  the  |)l'iiiitit'l',  evidence  was  tendered  of 
a  usage  in  the  undertaking  business  that  undertai.eis  should,  in  each 
funeral,  charge  the  entire  original  ('ost  of  certain  articles  of  funeral 
fciitniv  used  (gloves,  bands,  etc.).  although  they  might  lie  used  at 
other  fiiuwrats. 

ivi'.ATiNu,  J.  — T  will  not  exclude  the  cvideiuu'.  but  it  is  a  principU^  of 
law  that  a  custom  must  be  leasDiialile ;  '  thai  is,  that  it  must  not  be  un- 
reasonable.    I  slnill  put  that  to  the   jiiiy. 

Tlie  evidence,  vvtis  ac(H)rdiniil.v  gi\en.  and  at  the  close  of  the  case — ■ 

Kkating,  J.,  told  the  jurv  ili-it   in  oider  to  find  for  the  plaintiff  for 

•  Ueiiorli'd  •.'  Ko-I.  &  Kin    l;U. 


'  In  one  case  Manic,  J.,  Maid,  hh  ilhi"- 
tratiiig  this  principle  of  law:  "  It  Is  a  usage 
in  the  strawl'erry  businesH  to  put  all  the  b\i', 
8tr:iwhurries  at  the  top  of  llie  pottle,  and  all 
the  had  ouea  at  Iheliollo  n;  liul  that  would 


hardly  bo  a  valid  cuHloni  as  again  <t  a  pur- 
eliascr  who  bought  a  fair  p'jitle."    See  Tajr 
lor  »'.  Devey,  7  Art.  A  K,40'.);  <lone8  »'.  WaterH, 
T)  Tyrw.   tui;  Suuders  v.  Jameson,  i  ctr.  A 
Kir   "i57. 


'X'  ■ 


I-  a 


I 


w 


12 


ON    THIC    KKQUISITKS    TO    DIKIU    VAMOITY. 


Motcalf  V.  Weld. 


ii.  ■ ' 


:tf< 


>il! 


i'i' 


the  higher  scale  of  chaij^es,  on  the  ground  of  the  alleged  custom  or 
usage,  they  must  be  .saiisCied  tliat  it  was  such  a  custom  as  was  reason- 
able ;  that  is,  such  as  was  fair  and  proper,  and  such  as  reasonable,  hon- 
est, and  righteous  men  would  adopt.  If  they  thought  it  unrighteous, 
ami  so  unreasonable,  then  they  ought  not  to  found  a  verdict  upon  it. 

Vavdict  for  the  defendants. 


V-    ]•  ■'; 


7.    SAIMF,    IMMNCIPLE. 
Mi'/rCAI.F   v.  \\'km).* 


>>t  mil 


i  I 


!  \l 


In  the  Supreme.  .Tudicinl  Cotirt  of  Massdchiiscffs.  Nomimher^  1859. 
Hon.  LinMUEL  SuAW,  Chief  .f'isiice. 

•'      ClIAKI.KS  A.   DiAVKY,        | 

"     TnioiK  ■;  M i;i CALK,         j 

••    GKoiuii^  T.  P.ir.Ki.ow,    [  Jndyea, 

"    Puny  Mr.nnMiv,  ! 

*'       Eni'.NKZKK  11.   HOAU,        J 

A  custom  of  a  pnrticulai-  porl.  tliiiliioaineii's  adviincc  wa^os  due  under  Rhipping-artidtiSRhaU 
be  paid  to  ISu;  shippiii!?  mkimiI,  to  be  i)aid  by  liim  ti)  llio  boanliii};  bouse  keeper  bringing 
t)ie  seamen,  for  their  benellt,  i«  uEireasoiiabIc,  and  does  not  bind  lh(!  seamen,  altlionpl) 
known  to  Miein  at  the  time  of  signing  the  ai'ti<'les. 

Actions  of  contract  by  seamen  to  i-ccuvor  "advance  wngcs  "  under 
shipping-urticlos,  in  comuion  form,  bv  which  "it  is  agreed  b(^twcen  the 
master  and  seamen  o"  lunriners  of  tlic  brig  T>;!if»illia,"  etc.,  "now 
bound  for  the  port  ot  Boston,"  etc.,  "th:it  in  consideration  of  the 
monthly  or  other  wfiges  against  each  respective  sc;i!ii;in  or  iiiariner's 
name  hereunder  set,  they  sevcnilly  shall  and  will  perform  the  above- 
mentioned  voj'.'ige ;  and  the  said  master  does  hereby  agree  with  or  hire 
the  said  seamen  or  niai-iners  for  the  said  voyage,  at  such  monthly  wages 
or  prices,  to  be  paid  pursnaut  to  this  agreement  and  the  l:iws  of  the  Con- 
gress of  the  United  Stnlos."  Ans\ver:  Payment.  The  parties  waived 
a  tri:d  by  jury,  under  llic  statute  of  1857,  ch:ip.  207,  and  the  e:ises  were 
heiird  together  in  the  Superior  '^^ourt  of  Suffolk,  at  the  September  term, 
1858,  by  MoKTON,  J.,  who  signcMl  the  following  bill  of  exceptions:  — 

"The  dcfendiuits  offered  evidence  tending  to  show  that  it  is  the  cus- 
tom in  the  port  of  lioslon,  where  the  plaintiffs  were  shipped,  for 
owners  of  vessels  to  (jbtniu  their  seamen  tbrough  a  sliip[)ing-iigent,  and 

•  IteiKirled  14  (jiray,  JIO. 


I 


Mi     i 


A    U8AUK    MUST    i5K    KEASONABLK. 


13 


Illustrative  Cases. 


:l 


to  pay  the  advance  wanes  agreed  in  the  shipping-articles  to  the  ship- 
piiig-ugviit ;  and  that  such  shipping-agent  pays  the  same  to  the  board- 
ing-house keeper  who  brings  the  seamen  to  him  ;  and  the  boarding-liouse 
keeper  pays  or  accounts  for  the  same  to  the  seamen. 

•'  It  was  shown  tluit  the  money,  at  the  time  of  the  sliipment,  was  not 
paid  by  the  defendants  to  tlie  ;  ■ijping-agcnt,  but  was  charged  to  the 
dyfeiidants  by  him  on  his  boolv  md  tlie  amoiuit,  together  witli  his  own 
charges,  was  paid  to  the  agent  on  a  subsecpient  settlement  of  the  de- 
fendants' account  with  him. 

*' It  was  also  shown  that  the  plaintiffs  in  these  cases  knew  of  this 
custom,  and  that  tlie  derendants,  according  to  said  custom,  paid,  in  the 
niamici  above  set  forth,  to  the  shipping-agent  wiio  shi[)ped  tiic  i)laintiff3, 
the  sum  of  S^O  each,  being  the  advance  wages  .agreed  upon  in  the  ship- 
piiig-arti(!les  signed  by  the  plaintiffs. 

'■The  plaintiffs  objected  to  the  above  evidence  as  incompetent,  and 
contended  that  the  written  contract  excluded  parol  evidence  of  such 
a  (aistom  as  above  set  forth ;  and  th.'it  the  same,  if  proved,  would  be  an 
illeg.'il  ;)iid  i  nreasonabie  custom,  and  contrary  to  the  policy  of  the 
law.     But  the  court  overruled  the  objections  and  admitted  the  evidence. 

"The  court  being  satisfied  that  the  custom  existed,  and  that  it  was 
known  to  both  parties,  and  that  the  contract  was  made  with  reference 
to  and  under  it,  and  that  the  defendanls  had  paid  the  advance  wages 
under  it  to  the  sliipping-agcnt,  iniicd  that  the  custom  was  a  reasonable 
and  proper  one,  and  gave  judgment  for  the  defendants  in  each  case." 

C.  G.  ThomaK,  for  the  plaintiffs, 

./.  A.  A)i(h-ew,  for  the  defendants.  —  The  finding  of  the  court  below 
est:il)lishcs  the  existence  of  t'le  custom  relied  upon,  that  the  plaintiffs 
knew  of  it,  that  they  acted  in  accortlaiuie  with  that  knowledge,  and 
that  the  defendants  paid  the  money  according  to  the  custom.  Nothing 
in  the  shipping-articU-s  excluded  the  inethod  of  proof  of  payment  which 
was  ndopted ;  for,  taking  the  articles  as  they  stand,  the  (piestion  was. 
Were  the  plaintiffs  paid  before  sailing?  Nor  is  it  unreasonable  or  illegal 
that  owners  and  sean)en  should  ;igre(!  to  deposit  advance  wages  of  sea- 
men in  the  hands  of  a  third  i)!nty,  in  order  to  secure  to  the  seamen  the 
lienelitof  an  "  advance,"  and  to  the  owners  of  the  vessel  the  presence  of 
tlie  seamen  when  needed. 

Hoar,  J.  —  Three  questions  arise  upon  this  bill  of  exceptions:  — 

Fiist.  Was  tlie  payment  made  by  the  (h^fendants  of  the  advance 
wiiges  due  to  the  plnintiffs  in  these  actions  the  proper  subject  of  a 
••enstoni"  of  the  i)ort  of  Boston? 

Second.    Was  the  custoui  proved  at  the  trial  a  reasonable  custom? 


\     ■;: 


I    Sr 


i''$ 


I.     m 


V 


i">l 


1  r 

i 


1, 11 


;i;t^:!;!i 


til   ! 


14 


ON    THE    KEQUISITK8    TO    THEIR    VALIDITY. 


Motciilf  V.  Weld. 


Tliird.  Was  the  piiyment  proved  to  have  been  made  according  to  the 
custom  ? 

A  negative  answer  to  either  of  these  questions  would  require  the 
judgment  of  the  court  below  to  be  set  aside  and  a  new  trial  granted; 
and  we  are  of  opinion  that  neither  can  be  answered  affirmatively. 

J .  Thi-  seamen  made  a  written  contract  directly  with  the  owners.  By 
the  terms  of  that  contract  they  wer(!  entitled  to  receive  a  stipulated  sum 
as  advance  wages.  The  custom  relied  on  in  the  defence  is  a  custom  for 
the  owners  to  pay  this  advance  to  their  shipping-agent,  who  is  emplo3'^cd 
by  them  to  procure  a  crew,  and  for  him  in  his  turn  to  pay  it  to  the 
boarding-liouse  keeper  who  brings  the  seamen  to  him.  It  is  hot  a 
question  of  the  meaning  of  terms  in  a  contract  which  have  a  meaning 
peculiar  to  the  port  of  Boston,  and  known  to  the  contracting  parties. 
The  contract  is  intelligible  and  complete  in  itself.  It  obliges  the  de- 
fendants to  pay,  and  entitles  the  plaintiff  to  receive,  a  certain  sum  of 
money  at  a  certain  time.  Under  such  a  contract,  we  do  not  think  the 
mode  of  payjnent  is  the  proper  subject  of  a  custom,  and  no  authority 
has  been  cited  in  sujiport  of  such  a  proposition.  It  would  amount  to  a 
custom  of  seamen  to  employ  a  certain  class  of  agents  —  a  custom  for 
the  owners  to  transfer  the  direct  personal  responsibility  resting  upon 
them  to  another,  and  perhaps  an  irresponsible  party.  There  are  many 
usages  of  trade  which  have  nothing  to  do  witli  tiic  contracts  of  parties," 
and  which  cannot  be  set  up  to  modify  or  control  them.  It  is  very  cus- 
tomary for  merchants  to  pay  tiieir  debts  by  cheeks  upon  a  bank;  and 
this  may  be  very  well  known  to  persons  who  deal  witli  them,  and  yet  no 
one  is  bound  to  receive  a  clieck  in  discharge  of  a  promise  to  pay  money. 
It  may  be  a  custom  in  sonte  kinds  of  liusiness  to  pay  workmen  in  or- 
ders for  goods,  or  in  goods  ke|>t  for  sale  by  tlieir  employer,  or  not  to 
pay  wages  punctually  at  tlu^  tinu'  they  art^  due,  and  the  fears  or  necessi- 
ties of  the  labf)rcr  may  induce  him  to  yield  to  the  custom  and  accept 
payment  in  a  manner  or  at  a  time  convenient  to  the  em|)loyer;  but  it 
would  hardly  be  conti>  ■led  that  such  a  en^)(  m  could  be  regarded  in 
<letermining  tiie  h'gal  effect,  of  a  written  agreement.  We  fear  it  would 
not  be  ditlbudt  to  prove  a  custom  in  many  ports  to  defraud  and  impose 
upon  seann'n  in  various  ways,  —  a  custom  to  subject  their  persons  and 
property  to  a  kind  and  degree  of  control  which  has  its  origin  only  in 
their  ignoranc*  and  vices.  —  birt.  tiiesv  an'  not  the  customs  wliich  give 
an  interpretation  ti>  tiieir  cnntnu'ts. 

2.  Hut  if  there  c  )iild  Ix;  a  eustouj  respecting  the  manner  of  payment 
of  the  plaintiffs'  w.-M/es  we  do  not  <;<»iiHid«'r  the  custom  pnned  in  tlies( 
cases  a  reason.i  rl;*  or  proper  custom.     It  is  a  custom  for  one  of  the 


■I 

M 


i 


>4 


4'i 


'4. 

M 


I 


A    USAGE    MUST    HK    REASONABLE. 


15 


Illusirative  Cases —  DcHiiitioiis. 


••,% 


ft,; 


contracting  parties  to  put  liiinsilf  undor  the  tntela<>e  or  guanliuii.ship  of 
a  i):irticnlar  class  of  nn'U.   and   interferes  with  liis   right  to  the  direct 


lol  and 


it  of  the  fruits  of  his  own  hib( 


It 


to 


large 


seems 
some  boart ling-house 
keeper,  and  either  be  in  debt  to  him  or  bound  to  deal  with  him  for  the 
future.  Unfortunately,  this  is  too  often  the  actual  fact.  The  power 
which  the  keepers  of  l)i)ai(1iiig-hous(  s  for  seamen  practically  exercise 
over  tlieir  customers  is  liable  to  gn'at  abuse,  and  we  caniK)t  think  it 
wise  or  salutary  that  it  should  receive  any  extension  or  encouragement. 
A  custom  is  not  reasonalile  which  allows  a  payment  by  the  owners  to 
tlieir  own  agent,  with  a  paynient  liy  iiim  to  some  boarding-house  keeper 
to  whom  tile  sailor  is  under  no  legal  ol)lig;:tioii,  and  may  m»t  choose  to 
ciiiisiitute  and  trust  as  his  agent.  A  principle  nearly  analogous  was 
ai)[)lM'(l  ill  till'  case  of  Bor-eit  v.  S/ixUhinl.^ 

'd.  i'ut,  wiialever  the  nature  of  tlie  custom,  the  evidence  in  the  cases 
before  us  did  not  show  that  it  had  been  complied  with.  The  money 
was  not  even  paid  by  the  owners  to  the  siiipiiing-agent  at  the  time  it 
was  due,  but  wns  charge<l  by  him  in  ac(;ouiit.  It  does  not  ajipear  that 
the  plaintiffs  had  any  relations  to  a  boarding-house  keeper,  or  that  the 
advance  wages  have  ever  been  jiaid  to  any  one  for  their  use.  If  any 
boarding-house  keeper  aulliorized  by  them  to  receive  the  money  had 
actually  received  it,  so  that  it  had  gone  in  any  manner  to  their  use.  the 
defence  might  have  been  phiced  upon  the  ground  of  agency.  But  it 
oei'tiiiiily  cannot  be  maintained  that  the  defendnnts  can  dis<'iiarge  them- 
selves by  a  mere  transfer  of  tlieir  obligation  to  tlieir  own  agent. 

Exceptions  sustained. 


if  i  1 


NOTES. 


§  1.  Definitions  —  The  Common-Law  Customs.  —  A  custom  is  a  law  cstab- 
lisliL'd  l)y  lonjj;  iisa;:;!;.'  <'()iiini(>ii-la\v  customs  are  eitlior  ^cui.thI  or  particular, 
(ii'iicral  customs  are  those  which  prevail  throut^liout  the  wliole  country;  partic- 
ular eustoiiT;  are  those  which  iircvail  anion;:;  and  affect  only  Hk  inliatiitants  of  a 
|i.irtieu!:ir  plaet:  or  the  inenibers  of  a  particular  class.''     Genera!  customs  are  the 


j'^'    ,1  <f  >u 


anient 
these 
.f  the 


'  II)  Mcu:.  :m. 

«  Wilnix  V.  Wood,  9  WimkI.  MC.  Custom 
ilidcrs  from  pn'scripl jdh  hi  this  UiiU,  while 
|)roscri|ili<)ii  is  Uir  inakiiii,-  ol  a  riKlil,<'.nst(>in 
I-  the  inaUliig  of  a  l.iw.  lirowne  on  risaK<'s 
.V  Cii-toiiis,  ]4 :  •!  I'.la.  Coiiiin.  Uli:!;  Major  of 
l-iMii  Ui'nj.s  I,,  Tayloi,  :i  Lev.  Kit).  The  Lou- 
isiana t;ivil  <>)(ie  <l<;lliies  cuMtoins  llm- 
"CiistoniHrofiult  fi'oin  a  long  sevitv  of  aclioiis 
coMsiaiilly  ii!|)i'altMl,  which  hiu'i-  hy  such 
ri't'i'iitiou  niul  by   nninte-rrnpted    iM-fiuius' 


ccnci?  aeiiuircd  the  f(icc  ol  a  lacit  and  coiu- 
iiiou  (!oiisent."    Art.  ;i,  chap.  1. 

■■  Ousloms  are  eit'.'i  1  ^reneral  or  particular. 
Goiieial  cu.sloHiHan'  -i;  il  through- 

out 11  I'Dunlry,  and  l.icroiin.  me  law  of  that 
country;  particuhir  customs  are  such  as 
pnvail  III  SOUK!  comity,  city,  town,  pai'-h,  or 
place,  'rhe  e\istciice  of  tlic  lornier  is  to  lie 
detcrniiiM'd  hy  the  court;  that  of  the  latMM- 
by  ihc  juv.\ .  Browne,  on  I'sages  &  (Jus 
toins,  7  ,  liodllHh  r.  I  oy   2^?  M<    '"0. 


:         .:.i^ 

"I 

>J"f!' 

k; 


ON  Tiiio  KKQUisrn:s  to  tup:ik  valii>itv. 


Goiht.-iI  ;ind   I';irticnl!ir  Oiistuin- 


V\:  ■'  ii 


^i  J 


couimon  law;  and  of  them,  thcrefon.',  littl(>  will  ho  said,  as  tlm\  do  not  fall  within 
tiie  scope  of  this  treatise  P.v  tlicni,  in  niinil)ers  of  instances,  wlu-n*  the  Icj^isla^ 
tnre  had  not  prescribed  express  rules,  tlie  i)r()cr;ediniis  and  determinations  of  the 
iMijriish  courts  were  guided  and  directed:  by  Miem  were  seitied  and  determined 
tlie  mode  in  which  lands  should  des.end;  llie  methods  by  which  they  might  be 
ac(iuired  and  transferred;  the  re<iuisites  and  obligations  of  contracts;  the  rules 
for  the  construction  of  contracts,  statutes,  deeds,  and  wills;  the  remedies  for 
civil  injuries,  and  the  like.  General  ci^stoiiis  estal)lislied  such  fumlamental  rules 
of  tlie  common  law  as  these  —  rules,  some  of  wliieli  still  exist  and  have  success- 
fully defied  legislative  innovation:  That  the  eldest  son  is  the  heir  to  his  ances- 
tor; that  a  doed,  to  be  valid,  must  be  sealed  and  delivered;  that  wills  shall  he 
construed  liberally,  and  deeds  strictly ;  that  money  lent  upon  bond  is  recovera- 
ble by  an  action  of  debi,;  that  l)reakiiig  the  public  i)eace  is  an  offence  punishable 
by  line  and  imi)risonment.  These  customs,  recognized  by  the  courts  as  the  way 
in  which  prior  facts  were  dealt  with  by  the  people,  or  by  a  forgotten  law-making 
power,' became  established  rules  for  future  guidance.  The  evidences  of  those 
customs  which  constitute  the  common  law  are  to  be  found,  then,  in  the  decisions 
of  the  courts  as  published  in  the  re|)orts  and  in  the  writings  of  the  old  authors  — 
Glanville,  Bracton,  Hritton,  Fleta,  Littleton,  Statliam,  Brooke,  Fitzherbert, 
Staundford,  Ilengham,  and  Coke. 

The  particular  customs  of  the  I'^nglish  common  law  will  not  be  discussed  here 
at  length,  as  they  are  of  little  interest  to  the  American  lawyer,  i\x\d  of  little  value 
in  a  practical  text-book  of  tlie  law  as  it  exists  in  this  country.  "These  particular 
customs,"  says  Mr.  JJrowne,'^  "  which  are  contrary  to  the  general  law  of  the 
land,  are  the  remains  of  a  multitude  of  local  customs  prevailing,  some  in  one 
part,  some  in  anotlier,  over  the  whole  country,  while  It  was  divided  into  sejjarate 
dominions.  When  these  separate  kingdoms  became  united  under  one  rule,  a 
unity  of  custom  was  the  inevitable  result,  and  this  unity  of  custom  was  the  cause 
of  our  uniformity  of  laws.  The  history  of  law  is  parallel  to  the  history  of  race. 
And,  just  as  many  races  under  one  peaceful  rule  will  become  one  race,  —  repre- 
senting in  a  modified  form  the  peculiarity  of  each,  —  so,  many  systems  of  laws  — 
or  those  hypotlies(;s  of  laws,  or  provisional  laws,  customs  —  will  under  one  rule 
become  one  system,  which  will  have  the  modifled  characteristics  of  many  of  the 
systems  from  which  it  derived  its  origin.  But,  further;  just  as  in  ethnology  we 
discover  instances  in  which  a  race,  even  under  I  lie  most  favorable  conditions,  has 
remained  distinct  and  separate  in  the  midst  of  another  race,  although  living 
under  a  common  rule,  and  associated  in  peace,  in  intercourse,  and  in  commerce, 
so  we  llnd  in  the  study  of  jurispruv'ence  that  certain  customs  or  systems  o< 
laws  havt;  remained  sei)arate  and  distinct  in  the  midst  of  a  wide  and  uniform 
law,  and  have  retained  their  characteristic  peculiarities  in  spite  of  many  condi- 
tions which  faAored  an  amalgamation  and  a  unillcation  of  tlu-se  various  systems. 
These  so-called  customs  have  in  many  cases  been  conlirmed  to  the  districts 
which  have  the  privilege  of  enjoying  them,  by  various   acts   of  Parliament." 


'  Kvory  custom,  it  is  Baid,  .supposes  an  act 
of  Parliament  or  a  lawmude  in  former  times 
b.\  an  eiiuivalcnl  (lOwcr,  Hiougli  it,  wcmo  not 
Ciillcd  a  parlianiniit.  IJrown  on  Corp.  29; 
llailand  V.  Cooko,  Kicem.  320.  Yet  il  iloes 
not   follow  that   whatever   the    Icgiwlaiure 


niiglit  have  enacted  is  necessarily  a  good 
custom;  for  such  a  rule  would  Kustain  an 
uiueasonable  custom.  Weekly  v.  WUdnian, 
1  lA.  Kaym.  407. 

^  Browne  ou  Usages  &  Customs,  8. 


THE    COMMON    LAW    CUSTOMS. 


17 


rarlicular  Customs. 


iiol  fail  witliiu 
■re  the  Icgisla- 
linations  of  the 
Liul  detcnnincl 
1  they  might  be 
acts ;  the  rules 
.0  n'UU'(li(!S  for 
idamciital  rules 
d  have  suceess- 
nr  to  his  ances- 
it  wills  shall  be 
»ud  is  recovera- 
Ljnce  punishable 
lurts  as  the  way 
ton  law-making 
deuces  of  those 
in  the  decisions 
e  old  authors  — 
ve,   Fitzherbert, 

ii  disc\issed  here 
id  of  little  value 
These  particular 
i;ral  law  of  the 
\<I,  some  in  one 
id  into  separate 
idi;r  one  rule,  a 
m  was  the  cause 

history  of  race. 
|c  race,  —  repre- 

toms  of  laws  — 
|l  under  one  rule 

ol  niauy  of  the 

ill  elhiioloj^y  we 
conditions,  has 

althouij;h  living 

d  in  commerce, 
or  systems  o4 

de  and  uniform 
of  many  condi- 

arious  systems. 

to  the  districts 
if  Parliament." 

Bcessarily  a  good 
Iwould  sustain  iiii 
Ijekly  V.  Wildiiiaa, 

bustoms.S. 


IiistJinccs  of  these  customs  are  the  custom  of  <;avelkind  in  Kent,  by  which, 
ainonfrst  other  things,  all  the  sons,  and  not  the  eldest  only,  succeeded  to  their 
father's  inheritance;  the  custom  of  borough  Kiiitiish,  prevailing  in  other  co;'n- 
tios,  by  which  the  youngest  sou  inherited  the  estate  in  preference  to  all  his 
elder  brothers;'  the  customs  of  other  boroughs,  which  entitled  a  widow  to  all  her 
husband's  lands  for  her  dower,  iusteadof  the  one-third  to  which  she  was  entitled 
by  the  general  law;  the  customs  of  manors,''  and  the  particular  customs  of  the 
city  of  London.''  As  we  have  said,  particular  common-law  customs  are  not  fre- 
qiuntly  met  with  in  the  United  States.  Some  there  are,  indeed,  which  even  our 
courts  will  notice  judicially  —  as,  the  custom  or  law  of  the  road,  that  horses  and 
carriages  shall  kcip  to  the  right  side  in  passing,  or  the  custom  as  to  vessels 
passing  on  rivers.  Others  there  are,  also,  which  will  be  pointed  out  in  a  suc- 
ceeding chapter.* 


'  This  custom  is  said  to  ha  ^e  been  founded 
on  jinoilier  old  custom,  wliich  we  li.'ivc;  re- 
fenod  to  furtlier  on  (post,  §  .50),  and  wliich 
giivi'  to  ilie  lord  of  the  maror  the  riglit  of 
rniic,ul)iniige  with  liis  tenautt)'  wives  on  tlicir 
wivlding-niglits.  Undu'r  sucli  circumstunces 
it  uas  tliought  that  the  youngest  son  would 
be  more  certain  to  be  llie  child  of  tlie  ten- 
ant. 

-  Rex  V.  Jollilfe,  3  Dow.  &  Hy.  240;  3  l?arn. 
Acrevs.  ."jt;  Davidson  v.  Moscrop,  2  East,  SO; 
VVill(i>i'k  i:  Windsor,  3  ISarn.  &  Ad(d.  K; 
Shcppai-d  V.  Hall,  3  Ham.  &  Adol.  I;i3; 
Fr.'cinau  v.  I'hillips,  4  Mau.  &  Sel.  4SG; 
(;laikson  r.  VVoodhouse,  5  Term   Itep.  412; 

3  Dmig.  18!);  Ilegina  v.  Hale,  1  Per.  &  Dav. 
■l:V,:  '.)  Ad.  &  ?:.  33',);  Denn  v.  Spray,  1 
Toiin  Hep.  4()();  .Aliigj^lcton  v.  Barnett,  1 
Hurl.  &  N.  282;  2  Mini.  &  N.  fi.J3;  Anglesey 
IV  llalherton,  10  .'Mee.  &  W.  218;  Salisbury 
v.  (iladstone,  9  H.  I.,  Cas.  6'.)2;  Ilanmer  o. 
(Miaiice,  11  Jur.  (n.  s.)  31)7;  1.'!  Wenk.  Rep. 
X<l\:  Portland  v.  Hill,  L.  R.  2  Kii.  "fW;  12  .Jur. 
(N.  s.)  28(5;  15  Woek.  Rep.  38;  I5ral)ant  c. 
WilMin,  3.5  L.  .J.  (Q.  15.)  49;  Oort  r.  I'.iikbi'ck, 
1  l)o".g,  21H;  Ifichardson  ?•.  Walker,  4  l)iiw.& 
Ry.  198;  Richardson  r.  Capes,  4  Dow.  A  Ry. 
512;  Oard  r.Callard,  G  Mau.  &  Sel.  Git. 

'  Merchant  Tailors'  Co.  i:  Truscntt,  11 
K\(h.  8.-)5;  .Sallcr.s'  Co.  r.  .Jay,  2  Gal.  A  Dav. 
4U;  CoUyer  v.  Slonnctt,  5  .Scott  X.  R.  34; 
r.i-adbco  r.  Christ's  Hosjiital,  r>  Scott  X.  R, 
79;  ('losliy  f.  Ilotlicrington,  .T  Sciitl  N.  U.i;:',7; 
VVelibr.  IIiirr('ll,4  (!.  I{.'287;  Arnold  r.  I'oole, 

4  Man.  &  «;.  800;  I?ulbrokc  r.  (ioodcve,  1 
W.  Ulack.  ,5Cn;  Magrath  t>.  Hardy,  (i  Scott 
6"27;  Laybourn  v.  Crisp,  4  Moc.  &  \V.  320; 
I,yons  t\  Depass,  3  Per.  &  Dav.  177:  Ilartop 
V.  Iloare,  1  Wils.  8;  IJlacquiere  r.  Hawkins,  1 
DuiiM.  378;  I'luniinor  r.  Benlham,  1  l{iur.2IS; 
siiilnlon  r.  Jones,  2  Sclw.  N.  P.  1225;  I'ipcr 
r.(  liappell,14  Mee,&  W.624;  Bruin  v.  Knott, 
12  SiMi.  453. 


*  Mr.  Browne  (ITsnges  &  Customs,  p.  17) 
points  out  an  analogy  between  customs  and 
language.  "  Language,"  he  says,  "  is  for  the 
expression  of  human  tliought,  and,  in  that  it 
is  so,  it  is  also  a  record  of  the  past  elfori  of 
human  intelligence.  (Custom,  which  lias 
arisen  from  human  practice,  from  the  factual 
language  of  iransaeiion.s,  is  not  only  a  record 
of  the  past  conduct  of  men,  but  is  at  the 
same  time  a  ve'iicle  for  the  expression  of 
intention  to  those  who  liiid  usage  ready  to 
tiieir  hand.  JUit  there  is  a  close  analogy  be 
tweeu  the  two.  As  language  ha.s  passed 
from  unity  to  diversity  and  variety,  so  lias 
law  passed  from  a  central  unity  into  a  scat- 
tered and  cai-eless  vai'iety  of  custom,  so  that 
evcrj' place  has  its  particular  law  of  custom. 
'  Dialects,'  say.s  Cirimm, '  develoji  tliein-elve- 
progressively,  and  the  more  we  look  back 
ward  111  the  history  of  language,  the  smaller 
is  their  number  and  the  less  dellnite  their 
features.  All  inultiplicity  arises  givuluiilly 
from  an  original  unity.'  .Might  we  not  .'iiiply 
aliiiost  the  -.aiue  tnu^  wonls  to  customs  — 
which,  ill  our  estimation,  bear  an  exactly 
similar  relation  to  a  system  of  l.iw  that  ilia- 
lect^  do  to  a  language  —  that  the  great  (ier- 
maii  philologist  has  aii|ilied  to  dialects,  and 
say  that  (Ui.-^loms  have  developed  tliemselves 
progres.sivel:",  and  thai  the  unity  which  we 
rtnd  in  the  history  of  jurisprudence  has  lieeii 
(levelopcil  into  the  variety  of  customs  wliiih 
we  find  at  the  iiresent  lime.  Tliis  eaiiabillty 
of  change  in  law  is  not  an  indiealion  of  its 
inferiority,  butof  its  vitality.  Sn  long.if.  men 
progress,  so  long  as  new  events  hapjien,  new 
trade's  arise,  new  commerce  floats  upon 
hitherto  unsailed  seas,  new  manufactures 
change  the  features  of  our  lives,  and  new  and 
higher  principles  take  the  pl.ice  of  those 
whi(!h  governed  eoiidtii'l,  regulated  act.s,  and 
guided  life,  so  long  must  we  expect  progres- 
sive change  and  almost  lavish  variety  in  our 


%.m% 


t  ■'■ 


■•  a 


I  If^ 


'     '  tl-'  : 


:'.    ) 


mww 


18 


1 
1 

ii 

I 

■1          1 

i  ■ 

il 

i 

i 

ON    THK    RKcn'I'^UKS    TO    TIIIOIK    VAMDllT. 


Till'  Cii>toiii.s  of  Morrliiiiits. 


§  2.  The  Customa  of  Merchanta.  —  Most  of  the  general  customs  of  the  com- 
mon law  reluted  to  land,  iiiiil  tlic  affairs  of  an  airricultural  conmumity,  but  quick 


cnHloin»<.  When  a  piMiplo  in  dcjul,  — when 
tlicre  lire  no  transaclions  to  Iti.'  Kovi.'ined,  no 
rights  to  piolect,  no  interests  to  reir.'tril,  — the 
law  may  reinjiin  unchangiid,  for  the  law  Is 
dea<l.  W'f  liavc,  Indeed,  dead  lawn,  just  an 
we  have  dead  languages;  and  the  words 
of  I'rof.  Max  MUller,  which  are  si>oken 
with  regard  to  the  life  of  a  language,  are 
etiuiUly  ajudic.able  when  applied  to  a  sys- 
tem oJ  laws.  'As  soon,'  he  remarks,  'as  a 
language  loses  Its  unbounded  cai)ability  of 
change,  its  carelessness  about  what  it  throws 
away,  and  its  readinc.-is  in  always  supplying 
instantaneously  the  wants  iit  the  mind  and 
heart,  its  natural  life  is  riijinged  into  a  merely 
artificial  existence.'  We  cannot  blame  our- 
selves for  this  digression  if  it  enable-^  the 
reader  more  thoroughly  to  apjjreciate  the 
relation  whi(ih  exists  between  custom  and 
law;  if  it  enables  him  to  understand  that 
customs  are,  as  it  were,  the  feeders  of  law, 
and  that  there  is  always  a  slow  process  of 
ciislomary  regeneration  going  on,  which  will 
be  observable  to  ihc  diligent  student  of  legal 
history,  an<l  whieli  makes  up  for  gradual 
decay  of  law  which  is  going  on  pari  pasitl, 
and  which  results  from  llie gradual  tendency 
that  almost  every  fixed  enactment  has  to 
become  ol)solete.  '  1  very  niucli  doubt,'  said 
Mr.  Disraeli,  in  liis  speech  on  the  Irish  land 
bill  (I!."}  &  :•)■»  \ict.,  c.  46),  'the  propriety,  as 
a  genei'al  principle,  of  leg.ilizing  customs. 
The  moment  you  legalize  a  cu.stom  you  flx 
its  particular  cliaracter;  but  the  value  of  a 
cii-ioni  is  it.s  fiexibility,  and  that  it  adapts 
itself  to  :ill  the  circumstances  of  the  moment 
as  of  the  locality.  All  these  qualities  are 
lost  the  moment  you  crystallize  a  custom 
into  le,:;i>l;ilion.  Customs  may  not  be  lis  wi.so 
as  laws,  Ijul  they  are  always  more  popular. 
They  array  upon  their  side  alike  the  convic- 
tions and  the  prijjudicBs  ot  men.  They  are 
spontaneous.  They  grow  out  of  man's  ne- 
cessities and  inventions;  and  as  circum- 
slaiicfs  cliiinife,  and  alter,  and  die  off,  the 
custom  f  ills  into  de.-uetude  and  we  gel  rid 
ot  it.  Hut  if  you  make  it  into  a  law,  circum- 
stances alter,  but  the  law  remains  and  be- 
comes jiart  of  the  obsolete  legislation  which 
haunts  our  statute-book  and  harasses  soci- 
ety.' Hansard's  Debates,  v(d.  191),  p.  180«, 
delivered  March  11,  1S70.  *  •  ♦  One  of 
the  nii>st  remarkable  instances  of  the  con- 
version of  a  custom  into  ,i  law  occiiired  in 
connection  with  llie  I-andlord  and  Tenant 
arcliind)   Act,   1870   (:'.:!  A  :i»   Vict.,  c.  -16). 


What  is  most  curious  in  connection  with 
that  legislative  act  is,  that  it  Icgali/.ed  a 
custom,  or  a  variety  of  customs,  which  vary 
in  every  county,  the  real  nature  of  which  is 
only  very  imperfectly  understood.  Hut  the 
fact  remains  that  hero  has  been  the  recog- 
nition of  a  tangible  custom,  however  multi- 
form, however  various,  by  law  — the  con- 
firmation of  usage  by  act  of  Parliament.  As 
an  understanding  of  the  facts  connected 
with  the  custom  of  Ulster  tenant-right  will 
much  facilitate  the  clear  comprehension  of 
the  propositions  set  forth  above,  it  may  not 
be  inexpedient  to  describe  shortly  the  claim 
or  riglit  which  was  conferred  upon  the  ten- 
ant by  this  custom,  which  affected  the  rela- 
tions of  landlord  ami  tenant  in  Ireland.  The 
Irish  l<and  Act  assumes  tliat  a  custom  which 
bore  upon  the  relations  of  landlord  and  ten- 
ant prevailed  in  the  province  of  Ulster,  and 
that  it  prevailed  in  forms  varying  according 
to  local  usages.  There  is,  however,  no  defi- 
nition of  the  custom  to  which  the  sanction 
of  the  law  is  given.  Indeed,  men  are  not 
agreed  as  to  the  nature  or  extent  of  tho 
privileges  it  conferred.  As  to  tlie  character 
of  the  custom,  Mr.  tJladstone,  in  introducing 
the  bill,  said:  'The  view  we  take  of  it  is,  that 
it  includes  two  elements — it  includes  com- 
pensation for  improvements  and  it  includes 
the  price  of  good-will.  *  *  *  We  do  not 
attiMupt  to  modify  llie  custom;  we  do  not 
iiii|iiire  into  its  varieties  (it  is  well  known  to 
vary  within  certain  limits);  we  do  not  at- 
tein(it  to  improve  itonpialify  it:  we  leave  it 
to  be  examined  as  a  matter  of  fact,  and  when 
it  sliall  have  been  so  ascertained,  the  judge 
will  have  notliing  to  do  but  to  enforce  it." 
Hansard's  Parliamentary  Debates,  vol.  I'.tO, 
p.  ;5(').").  The  attention  of  the  coiiiiiiission  of 
iiuiuiry  into  the  law  and  practice  in  rela- 
tion to  the  occupation  of  land  in  Ireland, 
which  was  issued  in  1843,  under  the  presi- 
dency of  the  Karl  of  Devon,  was  of  course 
directed  to  the  Ulster  custom ;  but  even  the 
report  gives  no  very  clear  and  distinct  dc/l- 
nition  of  the  nature  of  the  custom.  In  the 
|)r(face  to  Lord  Devon's  digest,  which  wiis 
published  after  the  report  of  the  com- 
mission,  there  are  some  sentences  wliicli 
throw  a  little  light  on  the  subject.  He  says: 
'  Tlie  tenant  claims  what  he  calls  "  tenanl 
rij;lil  "  ill  the  land,  irrespective  of  aii\  h  fj.tl 
cl.iini  vested  in  him,  or  of  any  improveuunt 
etlccicd  by  him  ; '  and  liiither  on:  '  It  is  dilli 
cult  to  deny  thai  the  ellecl  of  the  syj-ifin  is  a 


'& 


I 


TliK    CUSTOMS    OF    MERCHANTS. 


19 


Di'fliiitions. 


f1 


miou  the  heels  of  coiiiincrce  came  what  Hhickstoiic  has  denoriiinatcd  tho  "  cus- 
tmiis  of  inerchiiiits;  "'  that  H  to  say,  tliosc  rules  rolative  to  hills  wf  oxcluui^c, 
partnership,  and  other  coiiiincnial  transactions,  which  convenience  ha<l  sii<;- 
gested  and  c.\perience  had  adopted  and  made  !j;eneral.  Those  customs  which 
were  seen  to  be  uiuversally  and  notoriously  prevalent  anionic  merchiiiits,  and 


1 
I 


practical  assnniption  by  the  tciijint  of  a  joint 
proiirietoFiihip  in  the  land,  altliougli  those 
laiiillordswhoMCiiiiicsce  in  it  do  notJUiknowl- 
eilh'e  to  thenisclviis  this  broad  fact,  and  that 
ttie  tendency  is  gradually  to  convert  tlie 
projirietor  into  a  mere  rentcbarf^cr,  having 
an  indtllnite  and  declining  annuity,  or  the 
lord  of  a  copyhold.  *  *  *  It  is,  in  the 
great  niai(Mity  of  ca.-io>,  not  a  reinibur.^enicnt 
foroutlay  incurred  or  iniprovenienl.s  etlccted 
ontbe  land,  but  a  mere  lifcas-;uranc(' or  im- 
munity from  outiage.  Hence  the  practice 
is  more  accurately  and  si/^nilicantly  termed 
"selling  the  good-will."'  Here,  then,  it 
is  evident  that  the  Ul.-.ter  tenant-right 
originated  in  an  equity  arising  to  tlu^  in- 
coming tenant  from  the  sanction  given  by 
the  landlord  to  his  iiurchase  of  his  farm. 
A  fair  and  just  man  could  scarcely  deprive 
hiin  of  tli(!  right  of  realizing  the  sum  which 
had  been  paiil  wilb  his  sanction,  and  hence 
arose  the  obligation  to  iicrniit  him  to  sell 
again;  fmd  in  this  oliligalinn,  enforceil  by 
public  opinion,  carried  out  in  loiblic  prac- 
tice, consisted  the  whole  custom  of  Ulster 
tenant-right.  In  Mr.  OH'onnell'.s  report 
upon  the  etfect  of  the  evidence  given  before 
the  commission,  Ibc  description  of  the  cus. 
torn  is  as  follows;  "riuit,  according  to  the 
practice  of  this  right,  no  person  can  gel  into 
the  occupalion  of  a  farm  without  i)aying  the 
previous  occupier  IIk-  price  of  bis  right  ot 
occupation,  or  good-will,  whether  the  land 
be  held  by  lease  or  at  will ;  that,  on  the 
ejectment  of  any  occ-upying- tenant,  he  re- 
serve.' the  full  selling-.alue  of  his  len.uit- 
riglil,  less  by  any  arrears  due  to  the  landlord  ; 
tli.il  the  same  custom,  unrecogni/eil  as  it  is 
by  law,  prevents  the  lord  who  has  bought 
til  ■  lenant-right,  or  otherwise  got  into  pos- 
Hes>iiin  of  a  farm,  from  setting  it  at  sui'h  an 
iii'ir  i^e  of  rent  as  to  <Jisplace  liMianl  right. 
Thus,  middle-men  are  almost  unknown,  and 

" Ifect  of  coinpelilion  for  lancl  is  iirini'i- 

pallv  to  increase  the  value  of  the  ten.int- 
'■!-■  'I.  not  the  .iniount  ivf  the  rent.  That 
I'M. nil  riglit  exists  evt  n  in  unimproved  l.ind, 
aal  Ihat  live  years'  purch.is,.  is  an  ordinary 
j-ayiiicut  for  the  tenant-right  of  such  laiui, 
wiiili'  llii(.(.|i  or  twenty  years'  purchase  is 
"flea  given  for  the  tenant-right  of  highly  im- 
piu\cd  farms.'    The  etVeci  (,,  the  evidence 


of  Mr.  Senior.who  at  one  time  tilled  the  offlce 
of  assi-lant  poor-law  commissioner,  before 
the  lownland  valuation  comtnitlee,  in  H44, 
was  to  the  eflcH't  that  Ulster  tenant- rigiil  en- 
titled the  tenant  to  the  diirerence  between 
the  actual  rent  of  bi.-.  farm  and  the  coiiipeti 
tion  price  wbicb  coulil  be  obtained  for  it, 
and  that  it  did  not  matter  wlK-tber  the  dif- 
ference could  be  referred  to  improv(!ment« 
effected  by  tlie  tenant  and  liis  predecessor 
In  title,  or  to  the  fact  that  the  farm  \va>  held 
originally  at  a  low  rent.  He  legardeci  it  an 
an  essential  ingreiiient  of  the  cu-loni  that 
the  rent  should  not  be  raised  on  the  incom 
ing  tenant,  but  suggested  that  the  real  dilll- 
culty  in  understanding  the  custom  was  to 
determine  why  the  landlord  did  not  increase 
the  rent.  Here,  then,  wo  have  a  most  curi- 
ous custom,  which  seems  to  have  imposed 
restrictions  upon  the  legal  riglit  of  the  land 
lord  to  raise  bis  rents.  .\nd  we  see  thai  lliat 
c\istom  has  by  an  act  of  the  legislature 
become  law;  that  this  custom  may  have 
resulted  from  the  fact  that  land  increases  in 
value  without  the  interposition  of  landlord 
or  of  tenant,  —  an  increase  which  sonic  polit- 
ical economists  have  suggostiMl  --hould  be  ap- 
proiiri.'Ued  to  the  use  of  the  St.ite,  but  which 
has  in  (iractice  been  foutid  so  in.«ieparablc 
and  iiniistingiiisbable  from  the  increased 
value  which  has  resulliid  from  improve- 
ments, wliich  were  by  conseiit  allowed  to 
beJong  to  th<^  tenant,  that  they  have  not  been 
distinguished  in  proprietor.-  liip,  —  and  hence 
the  institution,  it  seems  to  us,  of  tenant-right 
find  the  gradual  limitalion  of  the  hhidlord's 
ownership.  So  much  for  this  curious  exper- 
iment, which  iiossesjjes  much  iiitere,-t  ti>  the 
student  of  tlu(  science  of  jurisprudenoi'. 
We  see  here  the  transformation  of  custom 
into  statute  law.  The  usual  course  has  been 
to  llmi  custom  creeping  into  the  common 
law  through  the  decisions  of  the  courts; 
and  it  may  be  useful  to  considci-  in  this 
place,  as  preliminary  to  the  main  purpo,-e 
of  this  work,  that  branch  of  the  coinnioii 
law  which  goes  by  the  nan\e  of  'custon*-,' 
the  thorough  undiirslaiuling  of  which  cannot 
fail  to  throw  light  upon  the  law  of  usage." 
Browne  iin  t's;ij.i..-  ,v  !  'it.-'.oms,  pp.  2-5. 
•  1  lUa.  ('ouun.  70. 


'¥0' 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


fe 


// 


4*  >%? 


/. 


(/. 


v.. 


1.0 


1.1 


11.25 


US 
ly 

Mi 
XL. 


M    12.5 


1^ 


E 


I" 


V] 


y 


/^ 


Photographic 
.Sciences 
Corporation 


93  WIST  MAIN  STRUT 

WnSTIR.N.Y.  MStO 

(716)  a7a-4.'S03 


^^^V^^ 
<^.^ 


'^ 


O 


*l 


20 


ON   THIO    KKgUISITKS    TO   THEIK    VALIDIIT. 


lioc.il  (^ustoins  of  Trade. 


which  had  been  found  by  cxiMTiciicc  to  be  of  public  beni'flt,  were  soon  adopted 
by  tlie  luw-mercliani,  and  Ijecame  a  i)art  of  tin;  ;i<'iirial  i.ivv  of  Knjjtland."  Once 
reco'iriizt^d  by  a  judicial  decision,  it  was  not  nccc^^.-uv  to  prove  it  or  to  leave  it 
to  a  jury  in  subsequent  cases.  "People,"  said  Mr.  Justice  Fmstkk,  In  an  old 
case,*  ••  talk  of  the  custom  of  merchants.  This  word  •  custom  '  is  iipt  to  mislead 
our  ideas.  The  custom  of  mercliants,  so  far  as  the  law  rei;.'inU  it,  is  tlie  custom 
of  Enirland,  and  therefore  Lord  Ci>kk  calls  it  very  properly  the  law-merchant. 
We  should  not  confound  general  customs  with  special  local  customs."  Wlule 
these  customs  were  in  course  of  recoiinition  by  the  courts,  it  was  tlie  practice  of 
the  ju(',:;es  to  confer  on  points  of  Mercantile  law  with  persons  conversant  with 
the  trade.  Thus,  Lord  Chancellor  Hauowiokk  adopted  this  course  in  Krugerv. 
Wilce:^  •■  and  his  example  was  followed  hy  Lord  .\I anskiki,!)  in  a  sul)soi|iient  case, 
in  wli.  iiii  important  qu<'stion  had  arisen  ujxin  a  policy  of  marine  insurance. 
A  genera;  (ii.'),)mof  merchants,  when  It  is  ascertained  and  established,  becomes 
tiiena  p:t  if  the  law-merchant,  which  courts  of  ju>ii<c  are,  a«  said  by  Lord 
('AM)»nK:  a  Irnndao  v.  Sarmtt,''  ««  bonml  to  know  and  to  rcco^ni/.e.  Such  has 
been  tin,  tiv.ir.able  understandinj;  and  practice  in  Westminster  Hall  for  a  j^reat 
many  years;  there  is  no  decisit»n  or  dirtinn  to  the  contrary ;  and  justice  could 
not  be  administered  if  evidence  were  rei|nircd  to  be  ij^iven  totii-s  iinntl'-s  to  sup- 
port such  usa;je,  and  issue  inifi;lil  be  joined  upon  lliein  in  each  particul.tr  case." 
So  far,  then,  it  is  correctly  said,"  as  the  usaires  of  mercliants  have  been  judicially 
ascertained  and  estal)lished.  so  far  as  tliey  have  Itcciiuie  the  arknowledured  law 
of  the  land,  they  liave  ceased  to  deserve  tlie  name  of  custom,  just  as  much  as 
any  other  common-law  rule  which  had  its  foundation  in  flie  custom-  of  the 
country.  It  is  a  part  of  tliat  cumiuou  law,  and  is,  therefore,  not  within  the 
scope  of  this  book. 


§3.  Local  Oudtoms  of  Trade. — But  to  the  local  customs  of  trade  —  the 
usages  of  pariicuiar  markets  or  particular  ports  —  tlie  lart;<'r  part  of  this  volume 
will  lie  devoted;  and  the  importance  of  llie  imiuiry  may  lie  si-iii  in  tiie  lfe(|uency 
with  which  cases  involvliiij  tin-  discussion  of  the  admissibility  of  parol  evidence 
of  custom  or  usane  to  affect  the  riiilits  of  parties  as  measured  l)y  the  general 
rules  of  law,  or  to  vary,  idd  incidents  to,  or  explain  tlie  meaiiiuij;  of  written 
contracts,  have  come  l)elore  the  iMiglish  and  American  courts  within  recent 
years. 

§4.  Oontradlctory  Decisions  —  Dislilce  of  the  Judgres  to  extend  tlie  Office 
Ota  Usagre.  —  TluMuim  Itisions  arrived  at  in  many  ot  liie  ca-es  are  divergent 
and  coii(radi('lory,  especi.ally  in  tliose  win're  tlie  evidence  of  custom  has  been 
offered  for  tlie  purpose  of  explaining  writlen  coiilracls.  This  has  mainly  aris.ii 
fnnn  a  noticeabh-  va<;lllation  in  the  minds  of  some  of  the  judges  as  to  the  exieii' 
to  which  iLsa^es  should  be  admitted  iu  this  connection.     In  an  early  case,  fionl 


>  Itrandno  i<.  llariuUt,  12  Cl.  i*t  l<  hi.  8(15; 
Ilii>-<ey  f.  Jacob,  l.d.  Itnyni.  «s;  sioiu!  f. 
ItiiwliiiBon,  Willcs,  Tiiil ;  Himisdii  r.  Chapiiian. 
8(;.  II.  967,  note;  tJooUt'iidorfiT  r.  I'rewtoii, 
4  llxw.  317;  Maglll  r.  Itrown,  llriKht,  oiU; 
Llckliurrow  v.  MaHtni,  2  Term  Koi).  T.i. 


•  Kilif  r.  KnH[   IiiIm  Ci..,  1  W .  Ul:irk.  iltfl, 
i  lliirr.  I'JIC. 
.\iiil).  'i">2. 
<  Vallfjo  i:  Wlipelor,  1  Owp.  H3. 
I   12  (Jl.  *  Fill.  SOfi. 
°  Itrowne  ou  Uiiages  &  CuhIoiiib,  13. 


-  i 


DISLIKK    TO    KXTKM)   THKlIi    Ol'FICK. 


21 


Views  of  the  Jiuluos. 


Office 

iiris-'ii 
i,  Lord 


13. 


Ki.DON  ('\pi<'s-;c(l  11  (li^cidt  il  opitiioii  tluit  tlic  practice  of  lulinitiiiiii  usage  to  ex- 
plain Clint  racts  oiiirlit  not  to  Ix'  cm  iixlcd;  hut,  a-  \V(?  sliall  see  wiicii  we  come  to 
examine  tiie  siil»icct   nioie  particularly,'  the  iciuliMKiy  of  tlie  Ktmlisil  courts  is 
now  ilccideiily  tie-  oiher  way.     In  liie  earlier  cases,  ni:iny  ottier  Kni^lisli  juil.^es 
manifested  irrave  doubts  as  to  the  expiidiency  of  the  extension  of  the  rule  ad- 
inittinir  evidence  of    usage.      Thus,  in   ITuttoii  v.  Wari-pn,'-  the  (;ourt,  altiiough 
lecidinir  in  accordance    with   the  a.  tiiorities,   clearly  imlicateil  that  in  their 
opinion  the  relaxatifjn  of  the  coninu  i  law  in  reference  to  this  matter,  where 
'orinal  afireements  liad  liccu  entered  into,  and  especially  instrnments  under  seal, 
was  hotti  unwise  and  unjust.     In  Fr'niniii  v.  fjiid'-r,'^  Lord  Dicnm.vv,  C.  J.,  said: 
"If  a  leiiislator  were  calli-d  to  consider  the  expediency  of  passing  a  law  upon 
ihis  suhject,  the  conclusion  at  whicii  he  would  arrive  is  liardly  open  to  a  doubt. 
lie  would  dccidi'  at  once  that  the  written  contract  must  speak  for  itself  on  all 
Mc:isions:  tlial  noiliing  should  l)e  left  to  memory  or  specidation.     There  is  ho 
iucouv(  iiiiiuM-  in  rciiiiirlng  parties  making  written  contracts  to  write  the  whole 
of  their  contracts,  while,  in  mercintile  affairs,  no  mischief  can  be  greater  than 
the  uncertainty  produi-ccl  by  periiiitiing  verbal  stateuu-uts  i,o  vary  bargains  com- 
mitted to  writing.     But  tiif  nature  of  this  explanatory  evidence  renders  it  pecu- 
liarly dangerous.     Those  who  have  heard  it  must  have  been  struck  witli  the 
hesitating  strain   in  which  it  is  given  by  men  of   business,  and  their  wish  to 
si(;ure  the  correctness  of  ihi^lr  answer  by  referring  to  the  written  documents. 
Aizain:  what  ciin  be  more  ditllculi  than  to  ascertain,  as  a  matter  of  fact,  such  a 
prevalence  of  what  is  called  a  custom  (jf  trade,  as  to  justify  a  verdict  that  it 
forms  apart  of  every  contract?     Debate  may  also  be  fairly  raised  as  to  the  right 
of  binding  strangers  by  customs  probably  unknown  to  them;  a  conHict   may 
exist  l)etwcen  the  customs  of  two  tlifferent  places;  and,  supposing  all  thest?  dilll- 
culti<'s  removed,  and  the  custom  fully  proved,  still  it  will  almosi  always  remain 
diiubtfnl   whether  the  parties  to  the  individual  contract  really  meant  that  it 
shoidd  inchuh- the  custom."     Many  Vmerican  judges  have  expressed  their  dis- 
like of  this  siK'cies  of   evidence.     Thus,  in  lb;i7,  Mr.  Justice  Htoky   said:  "1 
own  myself  no  frii'nd  to  the  almo«t  indiscrimiiiiite  habit,  of  late  years,  of  setting 
lip  particular  usages  or  customs,  in  almost  all  kimls  of  business  or  trades,  to 
control,  vary,  or  aimul  the  general  liabilities  of  p:irties  under  the  common  law 
as  well  as  under  the  commerci.il  law.     It  has  loim"  appiiared  to  me  that  there  is 
no  small  danger  in  adinitlinii'  such  loose  un«l  incoiu-lusive  usaaies  and  customs, 
often  unknown  to  particular  parties,  and  always  liable  to  grea^   misunderstand- 
ings and  misinterpretations  and  aliuses,  to  outwtdgh  the  vvtdl  known  and  well 
settled  principles  of  law.     .\nd  I  rejoi<'e  to  find  that  of  late  years  tlje  courts  of 
law,  both  in  ICnglaud  and  America,  luive  been  disposed  to  mirrow  the  limits  of 
the  operation  of  such  usages  ;ind  customs,  and  to  discountenance  any  lurther 
extension  of  them."*   .\nd  in  Ihnimll  v.  Culumhian  Insurance  Compniiij,^  \\v  said: 
"  I  am  among  those  jiidues  who  think  usages  among  merchants  should  be  very 
-parlngly  adopteil  as   rules  of   court  by  courts  of   justice,  as  they  are  often 
loun<led  in  mere  mistake,  and  still  more  often  in  the  want  of  enlarged  and  com- 
prehensive views  of  the  full  bearing  of  principles."     "  Mls«irablc  will  be  our 


/•ort,  oiiitp.  IV. 

I  Mee.  *  W.  ^75. 

II  Ad.  A  K.  597. 


••  Till'  lieesiilo,  'J  Suiiiii.  5(17  (upprovod  in 
Hone  r.  Miiiiial  Safely  Ins.  Co.,  1  Sandf,  137^ 
('  2  .suuiii.  ;UI7, 


i 


tJ^'i 


\-m 


%h-W 


■0} 


i*  II 


,r 


Il  • 


22 


ON    THE    RKQUISITES    TO    TMIOIK    VALIIHIY. 


VifWH  of  tlic  .hnljfi's. 


I  i 


condifiim,"  said  VAi'u'.f  Justici!  Tn.iiirM.vN',  in  Sfncvfrv.  Whifman,^  "if  property 
is  fo  (Icptiid,  not  (HI  the  coiitnict  of  tlic  parties,  expounded  i)y  estal)lislie(l  prin- 
eipli's  of  law,  but  on  vvliat  is  calle  I  the  cnstom  of  |)articular  places;  so  tliat  we 
iiKi.v  have  different  law  in  every  town  and  village  in  tlie  Commonwealth."  In 
liolton  V.  Colder,^  Giijson,  C.  J.,  said:  "  Nothinii  should  he  more  pertinaeiously 
resisted  than  these  attempts  to  transfer  the  fiinetions  of  the  judy;e  from  the 
IxiKJi  to  the  witness-stand,  l)y  evithnice  of  customs  in  derogation  of  the  ireneral 
law,  that  would  involve  the  resi)onsil)ilities  of  the  j)arties  in  rules  whos''  ''xist- 
enee,  perhaps,  they  had  no  reason  to  susjjeet  before  liiey  eame  to  be  applied  to 
tlieir  riijiits.  If  the  existence  of  a  law  be  so  obscure  as  to  be  known  to  the 
con-titntional  expositors  of  it  only  throu;;h  th(;  evidence  of  witnesses,  it  is  no 
extravajiant  assumption  to  take  for  {^ranted  that  the  party  to  be  affected  was 
ignorant  of  it  at  the  time  when  the  knowlediie  of  it  would  have  been  most  ma- 
terial to  him;  and  to  try  a  man's  actions  l)y  a  rule  with  which  he  had  not  an 
opportunity  to  become  aniuainted  beforehand  is  the  very  worst  species  of 
•vruiiiy."  In  Cox  v.  O^JHIrii,'  TKitKiNS,  J.,  said:  "Were  the  courts  by  their 
decisions  to  cncoiiraLje  the  growth  of  tliese  local  usaixes,  oriiiinatinuc  generally  in 
lax  l>usiness  practice  or  misiaki'ii  ideas  of  law,  they  mi^ht  become  as  fjreat  an 
evil,  a  sourc(!  of  as  iiiiich  want  of  uniformity  in  the  law,  as  was  the  local  legis- 
lation of  the  past  —  an  evil  supposed  to  be  eradicated  from  our  political  system 
by  tlie  new  (Nxistilution."  In  Harper  v.Potmd,*  Stuaht,  J.,  said:  "To  permit 
i  >,e  temporary  or  indolent  usances  of  each  locality  to  control  contracts  would 
be  to  make  contracts  conceived  in  the  same  laniruaiie,  and  relating;  to  the  same 
■iubject-malter,  one  thing  in  one  place  ;ind  aiiotlur  in  ancther.  A  contract  for 
♦clearing'  land  might  thus  be  made  to  mean  one  thing  in  I'osoy  Ooiinty  and 
quite  another  in  Steuben  or  Lake.  In  one  locality  the  word  'clearing'  might 
mean  to  take  out  the  stumi)s;  in  another,  to  clear  off  everything  but  the  slumps; 
and  in  another,  to  clear  off  such  tiiiiher  as  was  eighteen  inches  and  under.  And 
the  same  contract,  in  precisely  the  same  words,  would  mean  each  of  these  things 
in  the  respective  localities.  This  would  create  a  Ijody  of  local  laws  far  more 
intricate  and  embMrrassing  in  judicial  investigations  than  the  local  statutes  with 
which  the  State  was  formerly  inundated.  Tlie  recognition  of  these  local  us;iges 
is,  as  a  general  rule,  contrary  to  the  juiblic  policy  of  this  Stale.  Uur  (consti- 
tution and  judicial,  decisions  are  hostile  to  local  legislation  and  local  customs. 
The  policy  of  the  State  is  to  have  all  her  localities  a  unit:  tlie  sanu!  law  and  the 
same  rule  of  decision  prevailing  everywhere  throughout  the  State."  In  ,Stnmg 
V.  Grdiid  7'nink  Railioay  Conijuiini,''  (Jooi.i-.v,  C.  J.,  said:  "  Sju'cial  customs  are 
so  lial)le  to  create  confusion  of  legal  rules  in  directions  not  coniemiilaled  In 
their  adoption,  that  tlw.y  are  admitted  into  the  law  with  gri'at  ri'luctance;  and  it 
is  not  often  a  liardship  to  parties  to  reject  a  custom,  so  long  as  they  are  left  free 
to  make  their  own  bargains,  and  can  incorporate  it  in  their  contracts  if  they  .see 
til  to  do  so."  In  Diiki'i's  v.  Allen,''  Senator  Wiauii  r  said  :  "  To  allow  the  usages 
jf  Wall  Street  to  control  the  general  law  in  relation  to  any  matter  miglit  residt 
in  the  I'siablishment  of  principles  not  always  in  arcor<lance  with  sound  morals. 
I  prefer  that  legal  principles  should  have  a  universal  a[tplicalion,  iind  that  con- 


<  OHinn.417. 

S   1  WmIIs,  IKU) 
■1  4  Inil.  :M. 


1831)). 


«  10  Ind.  :!•.•. 
»  i:.  Mich.  •.'00. 

•  7  iiHi,  m:. 


I  I 


D18I-IKE    TO    EXTKND    TIIKIK    OKI'ICK. 


23 


Coiitliftini'  Viows. 


tracts  should  n-ccivc  tlic  s.iino  iiitcrin'ct.ition  in  the  tliroimoil  jitnl  l)iisy  iiiait  of 
a  ooiniticrcial  inrlropoli^  that  tlicv  do  i-lscwhiM'e."  In  Porlrl'l'j'-  v.  Iiifmnitirc, 
Cniiipiinii,'  Mr.  Jnsfici-  Mii.i.r.i;  said:  "The  tt'U(h'n(\v  to  cstablisli  jctcal  and  lini- 
In-d  iisaiics  and  i-nstoin^  in  tlie  contracts  of  partic-^,  who  had  no  n-fcrcnco  to 
tlicin  when  tlie  tfansactions  took  i)]ac((,  has  lione  (iiiitc  as  far  as  sound  policy  can 
justify.  It  ])laci's  in  the;  hands  of  corporations,  sncli  as  banks,  insurance  com- 
panies, and  others,  by  conipcUiim  individuals  to  comply  with  rules  established 
for  the  interests  alone  of  tiie  former,  a  power  of  e.si;d)lishinn  these  rules  us 
ns.iu'e  or  cnstoni,  with  the  force  of  law."  In  Ilirh^n)  v.  Lniiil>,tt^-  SruM;,  J., 
alter  citins^  with  approval  tlie  l.iu'inas^c  of  Mr.  .Jusiii'c  Sroitv  in  llie  ease  of  Tlw. 
/fro /(/fl,  added :  "  Th.'  Constitution,  in  the  distribution  of  the  powers  of  the 
Srovirnment,  having;  conferred  the  Icjiishitive  power  on  tin-  0 'UfiMJ  Assembly, 
the  i|nestion  may  :irise,  I'lider  what  authority,  by  wiiat  warrant,  are  we  !)rou'j;ht 
umier  the  dominion  of  other  rules  of  action?  Is  it  sound,  is  it  consistent  with 
our  y:f>vernment,  that  any  portion  of  the  cnhmiinity  less  than  the  whole  —  any 
city,  town,  villay:e,  or  nei;xhl)orhood  —  siiall  exercis(>  powers  which  the  (""(nisti- 
tiilion  has  conferred  alone  on  the  (ieiieral  .Assembly?  Siiall  snch  portion  of  the 
ceininnnity  make  unto  themselves  a  law  wliicli  siiall  overrule  the  general  hiw  ? 
It  becomes  us  to  feel  our  way  cantionsly,  lest  there  ijrow  up  in  our  midst  some 
third  estate  wliich  shall  in  time  usnr|)  the  iiovj-rnment."  ^ 


'v,m 


I 


a- 


I    :  ■     «J 


§  5.  Different  Views  entertained  by  other  Judges.  —  IJiit  other  judyres  and 
courts  have  tliou;;ht  differently.     "  We  know,"  said  the  Supreme  Court  of  Ver- 
mont, in  CltdpiiKin  v.  Dinriiu',*  "that  iisULte  and  ciistttm  will  ac<'omplish  (!very- 
thiii^' except  imp    ^sibilities."     ««U.sa;tes,"  said  lit  iimaim),  J.,  iti  M<ic!/v.  WlinHng' 
Jnanrnn'c  Covipini;/,-'  "become  laws  liy  their  fi'ei|uent  repetition,  their  reason- 
ahlmcss,  tlieir  adaptation  to  promote  tlu;  inten^sts  of  the  parlies  eiiu;aiied  in  llie 
business  to  wliii'b  tliey  are  applied,  anil  by  their  common  adoption  in  the  coni- 
niiinity  amom:  those  inleirsted.     Tliev  art>the  results  of  the  sound  common  sense 
of  iiractical  mimls  eniiaired  in  the  same  busiiu-ss :  each  parly,  whether  buyer  or 
seller,  fj;iver  or  receiv<  r,  having;  his  own  as  well  as  the  conunon  advantage   in  , 
view."     In  Ellis  V.  Ohio  Lifr  Jiisiirdiicr  ('iiinpau]!,''  IJannky,  J.,  said:   "No  court  \ 
has  l)e(!n  more  rehuitant  tlian  this  to  allow  local  customs  to  interfere  with  the 
ficueral  principle.s  of  law;  but  to  a  certain  extent,  and  witiiin  certain  limits,  it 
beccunes  absolutely  necessary  to  enforce  them  or  to  disregard  the  implied  con- 
ditions and  under-lamlitii^s   upon  which  parlies  have  dealt.     To  allow  them  to 
o|ii  r-ite  aii'ainst  third  pi  I'soiis  who  cannot  be  .shown  to  have  had  any  knowledge    , 
of  tlicir  existence  is  one  tliinn,  and  to  hold  the  immediate  parlies  to  the  contro-   | 
versy  bound  by  u  course  of  business  upon  which  tliey  iiave  uniformly  acted,  or  / 


'  15  Wall.  r)73. 

«'JS  Al:i.  704. 

^  In  a  \'ii>?i Ilia  case  it  Is  said  tliiit,  as  tlio 
Coiir'lil'ciiin  vests  ino  whole  la\v-tiiaKiii,«; 
pnwc,  ill  llie  l.e^'i^lutuio,  it  is  (lilliciilt  In  .seu 
hnw  ih  few  iiidiviihials  eaii  make  a  law  by 
cu,-iiiiii  wjiidi  iH  to  liiiiil  all.  Wliy  .-^lioiilil 
tlir  iK'opIt!  be  forced  to  Hubinil  li>  a  law 
wliu'li  liati  never  been  aHseniecl  to  !<>■  iliem 
tliroiiK'li  their  )inp|ier  ie|ire.sciitiitives?  .\iiU 
evei  wore  the  Legislature  lo  exiiri!si*ly  do- 


I'lari'  llial  cii-Ioin  niipht  make  law,  would 
not  this  lie  :iii  iiiiaiillioriz.eil  ili'ji'^'.itioii  of 
liowerV  Would  nol  >ii<'.h  a  law  lie  v.iid  for 
uiiiit  of  power  III  till'  l.CKl-^laliire  to  dele- 
;;ale  In  a  few  men  tlic  riKlil  to  make  a  law 
by  ixetliii};  up  a  cii.stoiu?  Ueluplane  v. 
Creii-liaw,  fi  (iralt.  427. 

'  ;!•.'  Vl.  till). 

'  !»  Mete.  XA. 

♦  4  Oh  II  s|.  il'JS. 


fei 


'ifti 


I 


I, 


1    i 


24 


ON    T»1K    KEyLlSlTKS    lO    TIIKiU    VALIDITY. 


Contradictory  Views. 


hi. 


!    I 


OIK!  embiirkcd  in  a  particular  business  at  a  place  wlicre  it  lias  been  found  neces- 
sary to  its  s.ife  or  convenient  j)r()secution  tiiat  a  jienoral  custom  should  be 
observed,  under  oidisrations  to  conform  to  it,  is  quite  another.  Every  one  en- 
{:Ciij;ed  in  a  business  undertakes  to  briui?  to  it  a  competent  knowlcdije  of  ite  rules, 
and  princii)les,  and  those  who  deal  witii  him  have  a  rijiht  to  rely  upon  his  having 
re^iurded  them."  In  Chirk  \.  /)'.'/.vr,' Dkwky,  J.,  .said:  "The  extent  to  which 
local  usaj^es  of  trade  are  to  be  apfdied  in  the  construction  and  effect  to  be  given 
to  contracts,  is  a  matter  by  no  niejins  free  from  difliculty.  These  usages  differ 
essentially  from  those  more  general  customs  which  are  known  and  exist  as  part 
of  the  general  law  of  the  land,  and  wliicti  are  observed  and  applied  without 
being  established  l)y  evidence  offered  in  each  particular  case.  Those  local 
usages  may  be  of  comparatively  I'eceiit  origin,  and  may  be  limited  to  a  single 
city  or  village;  and  yet,  if  reasonable  In  their  provisions,  and  so  generally 
adopted  by  those  concerned  in  any  peculiar  branch  of  business  as  to  authorize 
the  presumption  that  they  are  known  by  those  wlio  are  dealing  as  vendors  and 
vendees  in  that  branch  of  trade  or  business,  tiie  dealings  and  contracts  of  .such 
persons  are  considered  to  have  been  made  in  reference  to  such  usnges  and  to 
be  governed  thereby.  fA'arned  jurists  have  of"  <i  expres>;('d  their  regret  at  the 
exteu-iioii  of  this  species  of  evidence,  and  esp  ally  that  as  to  usage  of  a  local 
and  limited  character,  as  impairing  in  some  degree  the  symmetry  of  the  law,  and 
ten<ling  to  uncertainty  and  embarrassment  in  the  administration  of  justice;  and 
also  liable  to  the  .serious  objection  that  the  knowledge  by  the  party  to  be  affected 
by  it,  of  the  existence  o*  such  usage,  is  a  mere  legal  presumption  which  may 
often  be  unfounded  in  reality,  although  such  usage  is  established  by  what  is 
deemed  competent  legal  evidence.  Notwithstanding  these  objections,  such  local 
usages  have  been  held  admissible  by  the  judicial  tribunals  as  competent  to  ex- 
plain and  qualify  the  contract,  and  give  to  it  an  effect  materially  different  from 
that  which  the  general  law  would  have  done  in  the  absence  of  all  evidence  of 
such  usage."  In  Wilcitcka  v.  Phillips,'^  Bamiwi.v,  J.,  said  of  usage:  "Its  in- 
flu(!iic(!  is  universal.  It  attaches  to  nations  and  to  individuals.  It  creates  obli- 
gations. It  interprets  laws.  General  custom  is  a  general  law,  and  forms  the  law 
of  contracts;  and  this,  sometimes,  though  it  be  at  variance  with  their  terms,  ft 
controls  even  the  principles  of  law.  Thus,  the  right  to  the  waygoing  crops, 
days  of  grace,  and  time  of  protest  are  regulated  by  the  usage  of  the  place  or 
bank,  and  affect  even  those  who  have  no  notice  of  the  custom.  The  ancient, 
established,  uniform,  and  known  custom  of  persons  engaged  in  any  trade  makes 
a  law  for  that  trade,  though  it  Is  not  applicable  to  other  trades.  It  is  their  >vay 
of  doing  business.  It  is  the  rule  to  which  all  who  enter  that  trade  arc  under- 
stood to  consent.  It  makes,  supplies,  and  construes  their  contracts.  Known  and 
sittled  usage  ought  to  bo  respected  by  courts  and  juries,  unless  such  usages  ;ir( 
agaijist  the  laws  or  policy  of  the  country;  otherwiso  our  dealings  with  foreigners 
in  foreign  lands  will  fall  Into  disorder  and  confusion."  Speaking  of  the  effect 
of  usages  and  customs  on  the  law  of  common  carriers,  Tiiomi'son,  C.  J.,  said: 
'*  Every  day  the  old  rule  is  being  gradually  modiiled  by  contract,  usage,  or 
notice,  to  lit  it  to  the  new  order  of  business  in  that  line.  Indeed,  the  whole 
system  of  the  law  of  common  carriers  grew  out  of  customs,  moulded  into  form 
and  made  practical  by  the  courts  in  England;  and  hence  for  a  long  time,  when 


<  11  Mete.  168. 


»  1  Wall.  jr.  63. 


VIKWS    C)l'    TIIK    .IIU(;!,>. 


25 


opinions  favoriir^  tiu'ir  Adini-sioii. 


siiit>  were  bron:;!!!  auainsi  pcixons  t'liLCii^ed  in  tin-  cari'la-^c  of  irod.i-  and  nit-r- 
(.'liandisc,  tlic  action  uas  caiird  an  action  n|iou  tiic  ciistoni  <>:  tiic  i-i-ahn.  In 
inodi-rn  times  tlic  practice  is  to  sue  upon  tlic  I'onti-act.  It  would  bt;  stnuif^c  if 
tiu!  process  of  iinpi'ovcnu'iii  l)y  custotn  and  usa-c  is  to  stop  just  hcfe  antl  go  no 
furliicr.  I  reiianl  it  as  a  matter  not  ddiatal)!*'  at  this  day,  tliat  a  custom  so  loi!<i 
pcrsisU'd  in  as  to  he  known  and  practised  liy  a  community  siiall  not  l)econie  the 
law  of  tile  particular  l)usincss  in  wliicli  it  exists  in  liie  community,  from  whicii  a 
presumption  will  arise  that  it  is  in  tlie  view  of  the  parties  who  contract  about 
tli(i  Hul)ject-matter  of  it,  and  depend  tliat  it  will  be  tlu;  interpreter  of  their  con- 
tracts whenever  tliey  leave  room  for  a  rt'sort  to  it.  In  other  words,  when  tlie 
express  terms  of  the  contract  do  not  exclude  it,  usages  of  this  kind  in  trade, 
which  havt  a  like  effect  wlien  clearly  estal)li-.licd,  are  i^cMieraliy  found  in  practi(  e 
to  exhil)it  a -uperior  adaptedness  to  the  convenience  and  wants  of  the  coinniu- 
i;ity  to  tliose  which  arc  superseded  by  them,  ami  in  this  way  development  and 
proj^ress  result.  It  is  hardly  necessary  to  say  that  all  usages  that  become  cus- 
toms must  be  reasonable  ;  l)ut  it  is  not  likely,  in  modern  times,  that  anytliinnelse 
would  be  suffered  to  ;irow  into  a  custom;  nor  that  it  must  be  continued,  for 
otherwise  it  would  never  become  a  custom;  still,  both  tlie^e  elements  are  re<|Ui- 
sitcs,  and  also  that  they  be  generally  ac(piiesccd  in  by  all  acting  within  the  scope 
of  their  operations."'  .\nd  Lord  ('\Mi'iti;i,i,,  in  the  leading  case  of  Ilinnfnii  v. 
Diilr,'  has  pointei.  out  that,  however  much  the  courts  may  shrink  fnun  giving  to 
the  usages  of  trade  tlieir  i)lace  in  the  law,  they  cannot  well  refuse  to  recogni/.e 
thi  in  without  injury  to  tliose  among  whom  they  exist.  "  Lawyers,"'  lie  says, 
"desire  certaint , ,  and  would  have  a  contract  express  all  its  terms,  and  desire 
that  no  parol  evidence  beyond  It  should  be  receivable.  But  imi-chants  and 
traders,  witli  a  multiplicity  of  transactions  pressing  on  them,  ami  nioviim  in  a 
narrow  circle  and  meeting  each  other,  desire  to  write  little,  and  leave  unwritten 
what  they  take  for  granted  in  every  contract.  In  spite  of  the  lamentations 
of  judges  they  will  continue  to  do  so,  and  in  a  vast  majority  of  cuse>,  of  wliich 
courts  of  law  hear  nothing,  they  do  >o  witlunit  loss  or  inconvenience  :  and,  upon 
the  whole,  they  llnd  this  mode  of  dealing  advantageous,  even  at  tlie  risk  of  o<'ca- 
sional  litigation."  The  later  Kny:lisli  cases  show  that,  in  more  recent  times  than 
those  to  which  Mr.  Justice  SKUiv  referred,  there  has  been  a  tendency  on  tin- 
part  of  the  Knglish  judges  to  extend  the  ollice  of  a  usage,  and  to  sippiy  words 
and  incidents  in  a  written  contract  which  are  not  inconsistent  with  it .  Looking 
to  the  intention  of  the  parlies  as  the  primary  object,  they  have  come  to  the  con- 
clusion tliat  this  intention  is  better  ascertained  by  a  careful  re  L'ard  to  the 
circumstances  of  the  parties  at  the  time  of  the  contract  than  by  a  slavisli  \ 
adherence  to  the  written  words  of  tlie  instrument.'  C<Misei|ueiiily  the  functions 
of  customs  have,  in  England,  l)een  much  extended  of  late  years;  and  leaving 
out  of  view  the  older  cases  where  evidence  of  usage  was  rejectetl,*  as  at  least  , 
impliedly  overruled  by  recent  adjudications,  the  Knglish  cases  are  easily  recon-j 
cilahle.  In  America,  however,  this  is  unfortunately  not  the  case.  The  deci- 
sions in  this  country,  even  of  late  years,  present  no  uniformity,  but  are  liberal 
or  strict  in  admitting  evidence  of  usage,  according  as  the  judges  concluded  to 
follow  the  earlier  or  the  later  English  precedents. 


'  McMusters  V.  Pennsylvnnia  U.  Co.,  (lit  I'a. 

81.  :!74. 

■  T  l':i.  *  m.  2<)C;  post,  Chilli.  IV. 


■'  Hi'Dwne    on  ITcaKcs   A   Pustoms ;  poBt, 
Cha|i.  1\'.,  nolcN  to  llutnfruy  r.  Dnie. 
4  Ak  (ireaves  c,  Ashlin,  :\  Camp.  42B. 


I 


m 


m 


1      ■  »J  i 


m 


0 


i.   I 


i 


2() 


ON    TJIK    UIOgUISlTES    TO    TUEIK    VALIUITY. 


' 


S   M 


Tbe  (liffei'ont  Kinds  of  Usui'cs  aud  Cu^toins. 


§  6.  The  different  Kinds  of  nsasres  and  Ouatoms. — We  have  now  soon  that 
ODiiiiiioii-hiw  customs  aro  of  two  kinds  —  frcntral  and  partiLidar:  lliat  liio  fornior 
are  a  part,  of  the  common  law,  and  tliat  tlio  latter  must  be  proved  by  witnesses, 
uidess  rciinired  by  statute  to  be  judir-ially  notiot-d  t)y  the  courts.  Wo  liavo  seen, 
likewise,  tiiat  the  onstoius  of  mercliants  are  l>otii  iicut  nil  and  local,  and  that  the 
former  are  a  part  of  tiie  common  law,  while  the  latter  must  be  provo<l  by  evi- 
dence. One  branch  of  our  subject  alone  remains,  viz. :  the  nsa;j;c  of  a  particular 
person.  Layinj;  aside  the  jjeneral  common-law  customs  and  the  nonoral  customs 
of  merchants,  we  divide  the  usaijos  and  customs  of  this  tnatise  into  throe 
brancli(!s,  viz.:  (1)  partindar  customs,  or  the  usa;ros  of  particular  places;  (2) 
usafies  of  trade,  or  the  customs  of  paiticular  trades  or  occupations;  and  (.'$)  cus- 
toms of  particular  pcrxms.  Thouujh  the  latter  word  has  strictly  a  different 
signillcation,  '•  usaj;e "  and  "custom"  have  come  to  be  used  as  synonymous 
and  convt  rlilde  terms,  and  will  be  so  used  in  tliese  panes.' 

r.  A  pMiiiciilar  custom  is  a  custom  which  affects  only  the  inhal)itants  of  a 
particidar  place. 

II.  .\  iisane  of  trade  is  a  uniform  practice  applied  to  modes  and  courses  of 
dealiuii  in  a  certain  business  or  occupation. 

III.  A  cnsLom  of  a  particular  porsou  is  tiio  liabit  of  an  individual.'^ 

In  the  ft)llowing  paj^os  we  shall  endeavor  to  state  the  law  applicable  to  nsajics 
and  customs,  the  rules  of  evidence  which  will  enable  the  practitioner  to  prove 
tlumi  in  iiivoii  cases,  the  rules  of  law  which  will  enaltle  iiim  to  determine  their 
lejiality  when  their  existence  is  established,  and  the  i>rincipios  which  will  enable 
him  to  place  upon  them  the  correct  legal  construction. 

4)  7.  A  Common-Ijaw  Custom  must  be  ancient.  —  A  common-law  custom  must 
have  existed  so  long  that  the  memory  of  man  nimioth  not  to  tiic  contrary.'  If  a 
usage  could  be  shown  to  have  commenced,  it  was  void  ;is  a  ciisiom.  Kvory  cus- 
tom, of  course,  must  have  had  a  coiumcnccmont,  but  if  its  iinrpiioii  could  be 
dix'ovorod,  then  the  individual  by  whose  particular  will  the  custom  had  its 
birih  would  be  discovered;  and  it  was  a  maxim  that  no  one  man  could  l)e  allowed 
to  make  a  law,  but  that  a  custom  corld  only  have  its  origin  in  llio  will  of  the 
whole.  Tlie  lime  "whereof  the  memory  of  man  runneth  nol  to  the  contrary  " 
rocoived  a  teciinical  limitation,  and  was  understood  to  refer  to  the  commoncomeut 
of  the  reign  of  Kinu;  Richard  I.* 


I  ■ 

;i 

■ 

i 

i 

1 

j. ' 

r 

1 

1 
ii 

it 

1 

'  See,  in  suppon  of  iliis.  Walla  v.  Ilailey, 
49  N.  Y.  !i.l  ;  DicUiii'^dii  ('.(jay,  7  Allen,  3a; 
Juwull  c.  Hallway  Va>.,  .').')  N.  U.  84. 

«  Po.it.  f  111, 

"  \  (Mi'lniii  imisl  have  been  time  out  of 
mind;  for  if  any  oiu!  eiin  8liow  whore  it 
boKun.  It  if*  niil  a  K'>'>'I  ciiKloni.  1  Daiio'H 
Ahr.,  chap.  2(1,  ait.  1;  lio\  r.  Juliii.s,  LolI'l.Tii; 
Hex  r.  JiililTi;,  iJ  Itarn.  &  Cress.  M;  .louUuis 

t".  Harvey,  1  ('romp.  M. «%  It.  877;  Simp r. 

Wells,  L.  I!.  7  IJ.  r..  214;  Duke  of  I'.caii- 
fort  V.  Smith,  4  Kxfli.  4,')0;  Master  I'ilots, 
etc.,  r.  ISnulU-y,  J  Kl.  &  Itl.  42S;  IJailcy  v. 
Api)loy.u-d,  :i  Ni^v.  A  I'.  i")7  ;  Scales  v.  Kny,  II 
Ad.  &  K.  81',);  Wiili'iiini!  v.  Upton,  5  .Muo.  A 
W.  3i»8. 


*  The  origin  iind  liisfory  of  lofjal  memory 
is  doscribud  in  a  iiolc  lo  the  oaso  of  Casnidy 
t'.  Stewart,  2  Man.  iV  G.  4:17,  thii.s:  "At  com 
ni,)n  law,  a  lu'i'xm  .suin^  for  ;i  fioohoM  was 
l>oiinil  to  >li(i\v  that  he  or  Ills  anceslor  had 
been  in  poss(,'>>ion  within  the  lime  of  miMii- 
(M'v ;  that  is,  wii.liin  the  inomory  of  a  person 
living,  or  of  his  father,  who,  if  not  presen'. 
lit  liiii  actual  /tvifrnuMit.  or  iiivi^stiture  of  the 
l)arty  di-isoi/cil,  had  m'cm  him  in  tho  peace- 
able  s('isin  of  the  land,  and  acting  as  oni^  of 
the  /«oc,i  of  the  lord's  court—  the  rule  of  l;iw 
formerly  being  thai  no  man  could  prove  any 
matter  unless  11  hud  been  seen  by  himself  or 
by  bis  father,  who  had  enjoined  him  to  testify 
the  fact,    iirae.,  lib.  ."i,  e.  .-i,  §  ;t,  fol.  :17:!   i,  i 


A    CUSTOM    MU8T    HK    ANCIKNT. 


27 


Tlii.s  liule  not  applicable  in  America. 


Althoiijili  in  a  fow  Aimrican  cases  '  it  lias  been  loosely  laid  down  that  o!u;  of 
the  essential  cli  iik  iits  of  a  valid  custom  or  usa^e  in  tlie  United  Slates  is  thai  it 
should  lie  "ancient,"  it  is  ol»vioiis  that  the  English  rule  could  lu'ver  have  any 
apijlic.ttion  liere.  As  tlie  "lime  whereof  tlie  memory  of  man  runnetli  not  to  tlie 
colli rary"  is  delined,  as  we  have  seen,  to  mean  the  befjinnini;  of  the  reisjn  of 
Uiclian!  I.,  this  is  sutlicieut  to  stoj)  all  in(|iiiry  into  American  common-law  cus- 
toms, for  the  excellenl  reason  that  lliis  country  was  not  discovered  until  several 

hundred  year-  later.- 

» 

lii.-t.  'M.  It  Ijiiiiig  found  incoiivcnieut  to 
Icno  till'  rinlit-  of  jiiii-lic-*  (lP|ieiiilent  mi  the 
lonjri'x  ily  "f  witiie-ses.  it  was  lliiiiij?lil  iloii- 
abli'  t"  roinovf  llii-  uiici'ilaiiiiy  \\iilii)iii 
lu.'ili'rially  t'lilaiyiiiK  or  iil)iii|j;iiii;  ^-iicli 
ii;,'lil.-.  Tliu  llr>t  lixcil  I'lioch  appeal's  to 
hiiM-  lii'fii  the  iicce-.-luu  of  Henry  1.  (on 
the  Ut  of  Aiif;n>t,  llmi).  So  niatlers  e.on- 
tniui'd  until  1.;:'..'),  when  it  was  tliought 
tliai  a  peiiod  of  iiiio  hunihed  aud  thirty- 
live  yeai'.-^  wa.»  an  uniea.sonable  suli-litu- 
tion  for  Ihe  rea<^h  of  hunian  memory,  occa- 
sionally i)rolon^L'd  by  the  injunction  above 
refi'iied  to  — from  its  nature,  of  too  rare 
orcinrencu  materially  to  alfect  the  period  of 
liiiulation.  IJy  llu;  Statute  of  Merlon  (I'iW), 
0.  (),  an  upoeh  more  nearly  approaching  llie 
HC.UKil  iluration  of  liumaii  rcmumbranee  was 
inli  'ductal,  viz..  the  coronation  of  Henry 
II.,  uhirh  bad  taken  place  eighty-one  years 
brf.re.  nanu'ly,  c)n  the  -JOlh  of  Uctober,  ll,>i. 
ill  i.' .'iilie  eij;hty  one  year.-,  had  .swollen  to 
one  liiimlied  and  twenty une  years;  wbicli, 
beiiii  considered  an  absurdity,  a  new  epoch 
w.i-  introduced,  viz.,  the  lime  of  liicbard  I.  — 
i.r.,  bis  ccronaliou  in  llsit,  bein;,'  eij;bly-six 
>».-ai-  before.  Thi.s  conlinuecl  unaltered  until 
l.")lo,  when  the  more  convenienl  rule  of  sixty 
yen-  bt'iore  action  broiiirht  was  inlroduced. 
Dtii'iiig  llie  whole  interval  between  1'270  and 
l.'ilit,  the  coronaiion  (d  Kichard  1.,  in  llsn, 
Wiis  ilii^  period  of  legal  memory  in  respect  to 
will-  of  right,  .sliorler  periods  being  adopted 
Willi  respect  to  the  liniilatioii  of  possessory 
ariions.  Fioin  llie  very  frc'iuenl  recurr'.'iice 
of  till-  as  the  longest  period  of  biiiit.ition,  in 
llie  discussion  w  lilch  look  phice  ilaily  in  this 
coiiil  ((^oiirl  of  ( 'oinmoii  I'leas)  in  respect  of 
real  actions,  it  was  thought  convenient  by 
llu^  judges  iliat  in  all  cases  of  customary 
iir  pre)  iriptive  righl.s  depending  upon  the 
memory  of  man  llie  same  epoch  should  bo 
resorted  to.  .\nd  this  usage,  resting  .-.oltdy 
Upon  an  arbitrary  introdiu'Llon  of  a  riili'  ot 
iin.ilo^ry  resUiig  upon  the  slaliile  of  Kdward 
1.  in  liT.'i,  had  become  so  invelerate  before 
ir>lo  ih.'ii  when  the  slatiile  of  I'iT,')  was  ro- 
iM'iih'il,  in  ir>lO,  a  rule  which  had  no  other 
fuiuuhition  than  the  repi.'aled  s'atute   was 


tacitly  allowed  to  remain,  and  it  lias  contin- 
ued down  to  our  own  tinie-^.  I'i'le  'i  A  :!  \Vm. 
IV.,c.;i."  (  o.  lat.  ll.'Sa;  IJrowne  on  Usages 
&  ('ust  )in-,  1.').  If  all  evid(!nce  of  the  com- 
mencement of  acusiom  was  wanting,  proof 
that  it  had  been  practised  for  a  long  time, 
and  th.'it  it  had  been  observed  as  f.'ir  back  as 
the  memory  cDuld  reach,  amounleil  to  pre- 
sumptive proof  that  it  pruvaili'd  ilurinfirthe 
whole  jieriod  of  legal  memory.  Ibiil,;  l.euo.k- 
art  I,'.  (Jooper,  7  Car.  &  I',  ll'.i;  .•<(', iles  v.  Key, 
11  All.  &  K.  Sl'.l.  The  Knglish  law  reiiiiiring 
proof  of  the  imnieinoriality  of  acusiom  has 
been  (^tiisidcralily  iiiodilled  by  the  statute  3 
&  ;i  Will.  IV.,  c.  71,  whii'b  provides,  na  to  cus- 
tomary and  presumptive  claims  of  rights  to 
be  exercised  over  the  land  of  other  |ierdOns 
(such  as  the  rights  of  cominuii,  or  way,  or 
use  of  light),  that  they  sliail  he  con.-idered  as 
sullicieiilly  esiablished  by  an  uninterrupted 
enjoyment  as  of  right  in  some  ca.ses  for 
thirty,  in  others  for  twenty  years,  and  shall 
not  be  defeated  where  .such  eiijo\inent  can 
be  proved  by  showing  that  they  coiiunenced 
within  the  time  of  legal  memory.  Shelf. 
I.eal  I'rop.  Mats.  (7th  ed.)  i,  U;  llaiiiner  v. 
(Jliance,  II  .Iiir.  (N.  s.)  :t'.t7 ,  Shuttlewoith  v. 
J..e  Fleming,  1!)  i).  W.  (n.  m.)  (187.  And  see 
uote-  to  (:assidy  r.  si, -u  art,  1  Man.  X  d.  i:'.7. 

1  As  in  Shaw  v.  I'eignson,  11  (.'ent.  \>.  J.  M6. 

'-  See  Ackerinan  v.  shelp,  s  N.  .1.  \,.  IJj; 
.Mien  r,  Stevens, '2'.)  N.J.  I..  .'50.1;  Stevens  v. 
I'alerson,  etc.,  U.  Co.,;i4  N.  J.  L.  .'):i'i.  Hut  see 
Uusl  r.  I,ow,  0  .Mass.  '.10.  It  is  held  in  Vir- 
ginia thai  a  custom  in  oppo-iiion  to  the 
eominon  lav,  however  geiu'ial  it  may  be, 
ha-  no  force  in  lliat  Mate,  liecuuse  it  must 
necessarily  lack  the  necessary  element  of 
aiithinity.  Therefore  the  supreme  (!ourt 
of  that  State,  in  IHitG,  refused  to  consider 
a  custom  that  the  outgoing  tenant  should 
have,  the  waygoing  crop,  as  was  held  in 
Kn^iland  in  Wiggle-worth  r.  Dallison,  post. 
Chap.  III.  I'artli'iilar  e,n-t(pins,  they  said, 
were  valid  in  Kngland,  preventing  the  appli- 
calion  of  the  common  law  to  the  county  (»r 
district  in  which  the  custom  prevails  by 
showing  that  the  common  law  n-  to  the 
suliject  never  had  any  existence  there.    A 


HiV^- 


m  WM 


ifii 


i 

■  y  . 


. 


28 


ON    TIIK    KKyUI.SlTKS    TO    TIIKIK    VALll>rrV. 


A  i;snj;e  of  TratK-  iiiiist   lit-  "  Kstablislicd." 


§  8.  But  a  particular  Custom  or  Usaere  of  Trade  is  valid  if  "  eatablishod."  — 
But,  as  was  laiil  down  by  ("liiof  Jiistic*.-  Hi:si  in  Saict'll  v.  Vorji,'  llic  ck-inciit,  of 


rii^iuiii,  to  be  vulid,  mu>i  he  uh  old  af>  the 
coimiion  law;  but  if  tlio  particular  fustoni 
was  proviiil  to  be  iuMiii.'moi'ial,  it  iu'(M;ss;irily 
e\i;lu(U'(l  the  general  cuhlinn  or  c.ouiuiou 
law,  because  the  two,  beiiij;  in(M>iisistciit, 
<!oulil  not  stand  together.  I5ut  tlie  settlers 
of  this  cc.uiitry  and  State  brought  with  them 
the  eouinioii  law  or  general  ('.ustonisof  Eng- 
land, hut  nunc  of  the  |iarti(;ular  customs. 
The  coniniiiii  law  thuH  became  the  law  of 
the  .State,  and  any  cu.stoiu  introduced  since 
its  settlement,  in  opposition  to  the  common 
law,  can  have  no  for<',e,  since  it  lacks  the 
essential  ingredient  of  a  good  custom  — it  is 
not  inimeinorial.  It  could  not  have  existed 
until  after  the  selttlement  of  the  country, 
and  after  the  common  law  had  attached  to 
every  part  of  it.  And  as  a  recent  usage  it 
could  not  change  the  common  law.  Harris 
(-.('arson,?  Leigh,  (tii.  This  argument  was 
approved  in  a  more  recent  case  in  that  .State 
(Uelaplano  v.  Crenshaw,  15  Gratt.  457),  in 
which  it  was  saul  (/<er  Lee,  J.):  "This 
opinion,  concurred  in  by  all  four  of  the 
court  who  were  present,  would  seem  to  be 
conclusive  upon  the  <|uosiion  in  this  case. 
Nor  do  I  feel  at  all  prepared  to  ailvancc  a 
different  one.  Th.-it  a  custom  to  dis|)lacc 
the  common  law  must  be  immemorial,  and 
that  the  time  of  memory  ruii.H  back  to  the 
reign  of  Itichard  Coeur  de  J>ion,  are  maxiniB 
of  such  ancient,  universal,  and  familiar 
acceptation  in  the  Knglish  law  that  it  is  now 
quite  too  late  to  controvert  their  correct- 
ness. And  although  this  period  was  that 
fixed  for  the  limitation  of  the  writ  of  right 
by  the  Statute  of  Westminster  1st,  wbi(;h 
was  afterwards  reduced  to  sixty  years  by  the 
Btatute  of  :vi  lien.  VI II.,  c.  'i,  I  am  aware 
of  no  change  made  in  the  mode  of  estimating 
the  period  during  which,  to  be  good,  a  custom 
must  be  said  to  have  continued.  It  is  true 
that  it  has  been  made  the  subject  of  regret 
and  complaint  that  the  time  of  legal  memory 
was  not  shortened  by  the  courts  of  law,  upon 
the  same  reason  which  led  to  the  reduction 
of  the  ]>eriod  of  limitation,  yet  that  it 
remaineil  unchanged  is  everywhere  con- 
ceded. See  Best  on  I'rcsump.  1.S7;  Cfil. 
Dig.,  tit.  HI,  chap.  1;  '2  (ircen;  on  Kv.,  ^  5;J8; 
(^)olidge  v.  Learned,  H  I'lck.  ."iOl.  i  am  aware 
that  cases  arc  to  be  found  in  which  regular 
usage  short  of  the  prescribed  period  has 
been  held  to  be  sufficient  evidence  of  the 


custom  alleged,  and.  «here  uncontradicted 
or  unexpl.-iiticil.  ilccniecl  sullicient  to  author- 
i/.i!  a  jury  to  llnd  the  existence  of  an  iinmc- 
nioriat  custom.  Hut  they  do  not  contrailict 
the  general  rule,  as  thi^-  will  be  found  t<> 
depend  upon  the  artUlci:d  doctrine  of  pre- 
sumptions, which  has  been  introduced  in 
part,  or  at  least  taken  advantaije  of,  to  evade 
the  rule  of  legal  memory  and  remedy  the 
in<;onvenience  attr.  iled  to  the  omission  of 
the  courts  to  shorti-n  the  period  by  analogy 
to  the  reduction  of  that  of  th(!  limitation  of 
the  writ  of  right.  IJut  this  doctrine  cannot 
be  applied  to  a  subject  like  this.  It  may  not 
be  conllned  to  incorporeal  liereditaments, 
but  may  extend  to  real  e-talealso;  but  this 
falls  within  neither  description;  and  the 
presumption  of  a  grant  is  not  a  riili;  of  law, 
but  is  to  be  the  basis  of  a  flnding  as  to  a  fact 
by  a  jury.  .Moreover,  it  can  only  be  made 
where  the  thing  lies  in  grant,  and  where 
there  is  a  p.-irly  by  whom  the  grant  could  be 
maile,  as  well  as  one  to  riceive  it.  Su<'h  a 
right  as  this  could  not  be  the  subject  of  a 
grant;  nor  is  there  any  one  who  could  be 
supposed  to  have  made  it,  nor  any  one  who 
could  be  supposed  to  have  acceiited  it.  The 
millers  of  the  present  day  cannot  be  bound 
by  the  concessions  of  those  of  former  years, 
because  in  no  legal  sense  can  the  latter 
occupy  the  relation  of  ancestors  or  prede- 
cessors to  them;  nor  can  the  inspector  of  this 
day  claim  to  have  derived  any  such  right  l)y 
succession.  Mis  rights  grow  out  of  the 
statute,  and  not  of  any  relation  in  which  be 
can  be  supposed  to  stand  to  those  who  may 
have  happened  to  precede  him  in  the  oftice. 
In  reference  to  those  cases  in  which  a  jury 
has  been  advised  to  iiresnino  a  usage  to  have 
been  immemorial  from  proof  of  its  continii 
ani'.e  for  a  shorter  period  than  that  of  legal 
memory,  it  must  be  observed  that  this  was 
where  the  usage  was  uncontradicted  anil 
unexplained,  and  its  origin  not  shown  to 
have  been  within  the  prescribed  period. 
This,  however,  may  always  be  done,  an<l  the 
presumption  that  the  custom  was  imnn' 
morial  thus  repelled.  Nor  is  it  necessiiiy 
that  its  origin,  or  a  time  when  it  did  not 
exist,  must  be  shown  by  the  memory  of  some 
living  witness;  for  the  'memory  of  man' 
wliicli  is  spoken  of  is  not  to  be  understood 
as  mciely  living  memory,  but  memory  by 
the  means  of  records  or  other  written  mc 


»  1  Car.  i\.  1'.  392  0»U),  ante,  p.  -J. 


A    CUSTOM    MUST    BE    ANCIKNT. 


2U 


Usages  of  Trade  Valid  If  Kstablished. 


antiquity  need  not  attiu-li  to  a  usii<»t' of  tnidt;.  Tliirteen  years  later,  Serjeant 
Stki'Iikn  called  lime  .i  pillar  of  a  common-law  custom,  l)iit  admitted  tliata^e  was 
not  essential  to  a  usai;e  of  trade.'  Kveii  as  eari\'  as  i'MO,  in  the  freciuently  cited 
e.i'^e  of  .Vo/</p  V.  Kt:n:u>>n<iii,'  Lord  Maxskiki.o  said:  •'  Kvery  underwriter  is  pre- 
-.iiined  to  Ih!  aei|iiainted  with  the  practice  of  the  trade  he  insures,  and  that 
whether  it  Is  recently  eslahlished  or  not.  If  he  does  not  know  it,  he  outrld  to 
iiifonn  himself.  It  is  no  matter  if  the  usaije  lias  only  been  for  a  year."  And  on 
tiie  construction  of  a  marine  policy  in  the  trade  to  Labrador,  which  was  first 
opened  to  V  inlish  sliipi)inu  after  the  Peace  of  Paris,  and  had  been  carried  on  but 
Hirc'  years,  he  held  that  a  custom  wiiich  had  been  invariably  observed  ever  since 
lis  op  ninjLt  was  as  bindiiiii  on  those  who  shippeil  on  Labrador  risks  as  though 
the  trade  ilscif  had  been  of  much  longer  contiinianee.  To  the  same  effect  are 
the  American  adjudications.  In  an  early  Maine  case,  the  court  refer  to  a  usage 
of  trade  in  these  words:  "The  counsel  for  the  defendant  treated  this  usage 
ainonii  printers  and  booksellers  as  a  custom,  sucli  as  we  tlnd  described  in  our  law- 
books, and  have  contended  that,  to  be  valid,  it  must  have  existed  for  time  imme- 
•norial,  uninterrupted,  deliuite,  reasonable,  etc.  \Ve  apprehend  that  the  law  of 
local  customs  is  not  applicable  in  this  case.  Tlie  usage  relied  on  has  nothing  local 
in  its  nature;  it  relates  to  a  certain  class  of  people  spread  through  the  country, 
and  to  tlie  peculiar  business  in  which  Miey  are  employtsd."^  Hut  while  a  usage 
of  trade  or  business  need  not  be  "  ancient,"  as  that  word  is  used  in  the  books, 
it  is  nt'vertlieles-,  reipiired  that  it  shall  be  fully  establislied  as  a  usage  of  trade 
or  l)usiness.  And  linie,  it  is  pl.un,  is  one  ingretljcnt,  at  least,  necessary  to 
aei'.oniplisli  this.  What  length  of  time  shall  be  sullieient  can,  of  courst;,  not  be 
staled  iu  the  form  of  a  general  rule,  but  each  case  must  depend  upon  the  various 
relations  of  the  trade  to  the  public;,  the  exiireueies  of  the  business,  and  the  fre- 
quency of  the  repetition  of  the  particular  usage  in  the  time  within  wliich  it 
may  be  proved  to  have  existed.  Thus,  three  weeks  in  the  city  of  New  York, 
where  a  'zreat  niiml)erot  transactions  of  the  same  character  take  place  daily,  was 
considered  by  Slosson,  J.,  a  sullieient  length  of  time  to  establish  a  usage  in  tlie  in- 


iiiorial-'.  And,  llierofore,  where  llierc  is  any 
I'i'uof  of  Uh'  Dri^iiial  ur  coiiiiiu'iiceiueut  of 
unylliiiii;,  U  cioiiicil  be  claiineil  by  i>rescfi|)- 
tlinunli's>il\veri'  before  the  eoinuiuiieeinent 
of  llie  leinii  of  Uichanl  1.  Oo.  Lit.  llli;  Id. 
II.-.  a;  ;{  .Staik.  on  Kv.  IJOt;  liull.  N.  l\  248. 
Tlio  origin  of  llie  iisaiic  in  Uiis  ease,  tlmiigh 
imt  in  till'  ineniory  of  living  iuimi,  is  shown 
l),v  the  (tales  of  llic  acts  f>iabtisliiiig  in- 
f-iccUons,  beyoiut  the  earliest  of  wliich,  of 
CDiirse,  till!  usage  could  not  have  exisicil. 
I  liavc  not  Ihoiight  it  necessary  to  enter  into 
till'  iiHiuiry  as  to  the  origin  of  the  cuslmn  of 
111  rchants,  or  into  those  respei'tiiig  the 
inigiii  of  the  jurisdiction  of  the  (Jourt  of 
Oliancery  or  of  the  Ivmg'.s  Itench  in  otiier 
than  criniinul  cases,  or  of  the  Courts  of 
Kxclu'iiuer  andConinion  Pleas;  nor  shall  1 
^^||)  to  consider  the  ciisioin  to  liar  eiUails  by 
sunender  in  the  l.ord.s'  Court  without  a 
rccovory,  all  of  which  .subjects  liave  been  ho 
eaiiie^lli  discussed  by  the  couuscl.     Time 


and  space  would  fail  ine  were  I  to  undertake 
to  enter  upon  the.  lask.  I  inusl  content 
myself  with  saying  that  I  think  the.se  in 
cjuirie.M  would  not  shed  much  light  upon  the 
subject  of  discussion  here,  depending,  as  I 
think  it  doe.s,  upon  a  few  intelligible  legal 
principles.  Neither  can  1  stop  to  examine 
the  various  cases  cited  from  the  reports  of 
our  sister  States  and  some  of  the  courts  of 
the  United  .states  to  e<lal)li-h  a  doctrine 
dill'erent  from  that  of  our  own  court.  It  is 
sutUcicnl  for  my  purpose  that  this  court  has, 
by  the  un.'iniinous  opinion  of  all  the  four 
judges  silting,  disallirined  tnc  existence  of 
any  customary  law  in  Virginia  in  a  ease  in 
which  the  alleged  custom  would  have  been, 
and  in  fact  had  been,  hiild  good  in  Kngland, 
and  that,  tipon  general  principles,  1  think 
that  conclusion  sound  and  correct." 

I  (ionld  V.  Oliver,  4  Bing.  N.  C.  i;U. 

a  1  l»oug.  510. 

»  WillianiH  V.  (illman,  .i  Me.  276. 


if 


^'^;l 


■m 


et  ■  ^ 


11"  i 


;.  ..?i 


<  f.i 

'    I'l 


1*1 


'  u  ■ 


30 


ON    TIIK    KKQUIHITES   TO   TUKIK    VALIDITY. 


A  Custom  must  be  Certain. 


ill  I   11 


siiranco  business  restrictiii!;  the  ordinary  sif;ni*l(!iiti()n  of  the  word  "  storehouse," 
as  used  In  a  Are  policy;'  wliilt!  live  years  in  an  Alabama  county,  in  Mif  ycnr  IHr/i, 
was  thon'j;l\t  by  the  court  to  Ix-  too  short  a  time  to  establisii  a  iisaLrc  In  liiee'.i  ry- 
in}?  trade  contrary  to  the  ordinary  rules  of  law.'  In  A'l'ims  v.  Otterbar./c.^  a  cer- 
tain banking;  practice  had  b(!en  iu  force  at  a  particular  bank  but  two  years,  and 
only  four  cases  iiad  occurred  under  It.  This  was  lield  to  be  iusulllcieiit  to 
establish  a  usa.uc.  "To  give  It  the  force  of  law,"  said  Mr.  Justice  McLkw, 
•'  it  re(|ulres  an  acquiescence  and  a  notoriety  from  whlcii  an  inftnnce  may  be 
drawn  that  It  is  known  to  the  pul)lii;,  and  especially  to  those  who  do  business 
with  the  bank."  In  Btiford  v.  Titckir,*  in  a  suit  on  a  promissory  note  for  a  n  r- 
tain  number  of  dollars,  made  iu  January,  18(55,  evidence  was  offered  and  rejeeted 
that  there  was  at  the  place,  and  in  the  county  generally,  where  said  note  was 
given,  a  general  and  notorious  custom  that  where  the  word  "  dollars"  was  cm. 
ployed  In  a  contract,  and  nothing  was  said  as  to  the  kind  of  dollars,  the  aizree- 
nient  was  to  pay  in  Confederate  money.  "  We  know  historically,"  said  the 
Supreme  Court  of  Alabama,  in  artlrming  the;  ruling,  "that  (/Oided(;rate  currency 
(treasury-notes)  wax  Urst  issued  about  tiie  year  1862,  and,  therefore,  the  alleged 
custom  wanted  nearly  all  the  necessary  requisites  of  a  good  custom.  It  cer- 
tainly wanted  antiquity,  and  it  must  also  have  wanted  certainty,  consent,  obliga- 
tion, and  the  otlier  elements  of  a  good  custom."  Where  a  custom  of  millers 
at  Indianapolis  was  set  up,  that  when  tiiey  received  wheat,  it  was  at  the  risk  of 
the  seller  until  he  called  for  ins  pay,  the  court  said:  *'  It  is  very  dillieult  to  see 
how  such  a  custom  could  be  proved.  It  could  not  be  proved  by  showing  that  it 
was  the  custom  of  millers  to  make  sucli  a  stipulation  a  part  of  the  contract, 
because  that  would  make  the  question  of  liability  one,  not  of  custom,  but  of 
special  contract.  Such  a  custom  could  only  be  proved  by  showing  that  tiie 
Indianapolis  millers  had  long  been  in  the  habit  of  thus  receiving  wheat,  and 
losing  it  or  having  it  destroyed,  and  tliat  the  sellers  did  not  claim  pay  for  it  in 
sucii  cases;  in  sliort,  that  losses  of  wiieat  i)y  millers,  and  exemption  from  liability 
to  pay  for  it,  liad  been  so  frequent  and  for  so  long  a  time  as  to  have  become  tiit 
law  of  tiie  place."  ^  A  liabit  of  a  carrier,  for  a  month  past,  to  deposit  iioods  in 
a  certain  place  does  not  establish  a  custom  binding  on  parlies  not  having  knowl- 
edge of  it.* 

Therefore,  the  rule  that  a  usage  must  be  established  means  simply  that    it 
must  have  existed  a  suflicient  length  of  time  to  have  become  generally  known." 

§  1).  A  Common-Law  Custom  must  bo  certain.  —  A  common-law  custom  was 


'  Willi  c.  East  liiver  Ins.  Co., ;{  Duer,  2(J4. 

-  Cooper  ('.  l*>erry,  21  Ga.  526.  And  see 
.Smith  V.  Itife,  .Vi  Ala.  417. 

•'  Ih  How.  h.\'i. 

^  44  Ala.  *). 

6  OarlMe  r.  Wallace,  12  Ind.  252. 

«  Alali:mi,i.  eti-.,  K.  Co.r.  Ki<M,  .l".  .Ma.  209. 

'  Smith  c.  Wii^'ht,  1  (^aine.-*,  15;  Ti-ott  v. 
Wood,  1  (iiiU.  141  ;  .Meai-s  c.  Wuplcs:!  Hoiist. 
081 ;  Cliirk  r.  Gilford,  7  l.si.  521 ;  Hall  v.  .Stovra, 
7  Wis.  2.");$;  Newiinid  i-.  Wright,  4  Itawle, 
1<I5:  Wilson  t<.  Kauiuan,  80  HI.  4'.):{;  Juggoiti- 
ohuB  Uhoi-e   r.  Muuickchund,  7  Moo.  Iiid. 


App.  263;  Lcgh  V.  Hewitt,  4  Ea.st,  154.  I  hi 
u.sagc  of  a  corporation  in  conllici  with  ii- 
chartered  powers  iiued  not  he  anei.-ai. 
Bulklcy  V.  Derby  Fi.shiug  Co.,  2  Conn.  -.'r--'. 
post,  (Mnip.  III.  "Inoriler  lo  const  it  me  mk  !i 
acnstom,  or,  raoro  properly  speakiiij,',  suili.i 
usage  as  is  binding  upon  a  lenunt,  it  Is  ii>>l 
ncces.sary  that  it  should  havebeei>  inimeino 
rially  adopted:  it  is  .siitllcient  if  thcri'  he  .i 
general  usage  aioplicable  to  farms  of  a  p;ii  ■ 
ticulnr  deseriplioii.  '  Taylor's  I,  ,v  I'.,  §  .IIO 
(citing,  iiUer  alia,  Thorpe  r.  Kyre,  :i  Nev.  & 
M.2U;  Wilkina  v.  Wood,  17  L.  J.  (l^.  IJ.)  iVJ). 


A    (ISTOM    >H M     BK    (KKTAIN. 


31 


llliisti'ulions. 


n(|iiirf'(l  to  he  cortiiin  .'iml  iiiiiforin,  both  us  to  the  persons  claiinin*;  undc'r  i 

ami  tin-  Itiiiius  cl.-iiintid.'      "  Tliis  is  an  cltiMriit,"  says  Mr.   Buowxk,' "  whicti 

must  ii(M('s>arily  and  by  force  of  reason  attaili  to  a  custitin.     Any  miscellaneous 

observances  wliic  li  iiave  no  eolierence  of  prinriiilt  are  necessarily  incfflcacionsas 

forinini;  a  rule  of  conduct.     It  Is  only  when  observances  have  shaped  themselves 

into  a  (ronstant  uniformity,  only  when  their  characteristics  of  the  past  can  be  a 

cleiir  liLTJit  for  their  incidents  in  the  future,  that  they  rise  to  the  level  of  a  cnn- 

t.iHi,  which  is  the  stuff  of  which  law  Is  made."     Therefore,  since  before  Hkack- 

sToNi'.'s  time  a  custom  that  hind  shall  des(;end  to  the  most  worthy  of  the  owner's 

blood  wa-^  void,  on  the  ground  that  the  custom  gives  no  certain  means  for  the 

discovery  of  merit,  while  a  custom  that  lands  shall  descend  to  the  next  male  of 

the  blood,  exclusive  of  feniales,  was  yood.     In  Sl'-'hy  v.  Roldnsdii,^  it  was  held 

by  llie  Queen's  Bench,  in  1768,  that  a  custom  for  po  >  •  and  indi;;<'nt  householders 

living;  in  V.  to  cut  and  carry  away  rotten  bouirlis  iind  branches  in  a  chase  in  A. 

c.tiild  not  be  supported,   the  desei-iptions  of    the   p'-rsons  cD'Hled   beini;  too 

xaiiue.    And  in  another  early  case  it  was  Ik.'I  that  no  pers' ,i  had,  at  common 

i.iw,  a  ri^jht  to  i^lean  in  the  harvest-Held:  and  that  ooitiier  have  the  poor  of  a 

"■M-'^'i  IciiaHij  settlfid  (as  such)  any  such  right,  on  tUo    rround  that  such  a  right 

w.iiiid  be  ineonsistein  with  the  nature  of  propei  ty,  and  that  no  ri'^ilit  can  exi-»t, 

Ml  comiiu)!!  law  unless  both  the  subject  of  it  and  they  who  claim  it  are  certain.' 

Si>,  a  custom  t.o  pay  twopence  an  acre  in  lieu  of  tithes  is  good;  but   were  it  to 

p.iy  somiiim.  s  twopence  and  sometimc^s  threepence,  as  the  occupiiM  of  the  land 

clioosc-.  it  i-  bad  on  account  of  its  uncertainty.*    "  Yet  a  custom,"  as  Bi.ack- 

sTMN  I    |li,^^  it/'  "  to  pay  a  year's  improved  value  for  a  fine  on  a  copyhold  estate 

is  ;;().i  I.  tii<iu;:li  the  value  be  uncertain;  for  the  value  may  at  any  time  be  ascer- 

tiiiiicd.  and  tlif  maxim  of  the  law  is,  Id  ci.rtum  est,  quod  ccHtim  redi  potest.''* 

S(i,  ,1  1  ustoia  for  th(!  tenants  of  collieries  to  throw  earth,  stones,  coals,  etc.,  in 

lie.i|i«  upon  land  .far  to  certain  coal-pits  was  held  bad,  on  the  ground  that  the 

\\n\;\  iiKii   w;is  too  uncertain.'     In  Wilsuuv.  Willes,'^  the  declaration  was  tres- 

|i;ivs  in;-  bif.'iking  and  entering   the   close  of   the  plaintiff,  called   Hampstead 

lli'iitli.  and  diguing  and  carrying  away  turf  covered  with  grass,  etc.     Plea:  that 

tile  '>.,.(>  . „  ,pi,,  was  [lurcel  of  a  waste  in  the  manor  of  Hampstead ;  that  tlu're 

iiad  1(1  en  from  iime  immemorial  divers  customary  tenements  by  copy  of  court- 

roM      And  it  then  allegtnl  a  custom  for  tenants  of  such  tenements,  "having  a 

mirdeii  or  gardens,  parcels  of  the  same,"  to  dig  turf  for  the  making  or  repairing 

ol  mu-s-plots  in  such  gardens  every  year,  at  all  times  of  the  year,  in  such  quan- 

ii';i  IIS  iin-itniou  hath  viiuirnl,  and  justilled  the  taking  accordin'j;ly.     To  this  plea 

tlien  \v;i'-  a  ireneral  demurrer,  and  jinhuient  was  giv(!n  for  the  plaintiff.     Lord 

Ki,i.i.Ni'.<.i;(ir(;ii  said  that  "  a  custom,  however  ancient,  must  not  be  iiidellnite 

Mini  iiucertiiiii:  ■'  that  it  was  '<  not  defined  what  sort  of  improvement  the  cu.stom 

exii  !idw  to."    tliat  "every  part  of  the  garden  may  be  converted  into  grass- 


l>:iiie'KAbr.,  i-hiii>.'2(i,  §.5;  MillucliMmi>  n. 
.I.iluiM.ii.Willi'K.  2n-,:  I'.ell  r.  Wunk'll,  Willcs, 
•-'"i;  si.u'lr.  Hiuifjlitoii,  1  H.  UlMck.  "il;  i;c.\ 
'  Ki-rli'.'^liold,  !  I'.ani.  .t  .\1<|.  .KiO.  Lloyd  v. 
•Imi.'-,  1'.'  ,l,i:.  r,.-;,  i;   i,.  ,r.  ((;.  l>.,   m;;  0  C. 

r.  Ml. 

'2Tt;iui  i;.',.   7,,-. 


1  Steel  V.  lloiii^liloii,  I  H.  Hl.ick.  ,51. 

•'  Taiii.stry's  (;a.-e,  Dav.  .\i;  lilewett  v.  Tre- 
gonning, :!  Ad.  &  V..  fM. 

»  1  IJla.  Comiii.  III. 

■  Wilkes  ('.  I'.roadljeut,  Willes,  63.  But 
ace  Marqui.s  of  Salisibury  v.  Gladstone,  II  II. 
L.  Cas.  (•■•li. 

»  7  lia-i,  121. 


W^ 


:.X' 


^itj 


m 


'  n  I 


"hi 


32 


ON   THE    KKQIJIISITES   TO   THEIR    VALIDITY. 


A  Custom  must  be  OtTtiiin. 


'!i  i! 


.li!' 


plots;"  that  tliere  was  "  nothing  to  restrain  the  defendunts  from  taking  the 
wliolc  of  the  turbary  oi  the  comnum,"  and  it  resolved  itself  into  "  tiu;  mere 
will  and  pleasure  of  the  tenant."  Similarly,  in  (Jl'njton  v.  Corby,'  an  action  of 
trespass  for  broaliinii  plaintiff's  close  and  diiiging  and  carryin-j;  away  clay,  the 
defendant  justified  as  the  owner  of  a  i)rick-kiln,  and  pleaded  that  all  occupiers 
thereof  for  thirty  years  had  enjoyed  :is  of  right,  etc.,  a  right  to  dig,  ttike,  and 
carry  away  from  the  do.-e  so  much  clay  as  loas  at  any  time  n'quired  bij  him  and 
thfin  for  making  bricks  at  the  brick-kiln,  in  every  year,  and  at  all  times  of  the 
year.  The  plea  was  held  bad,  Di'.nm.vn,  C.  J.,  saying:  "It  is  observable  that 
in  all  cases  of  a  claim  of  right  in  aliono  rol<i,  whether  immediately  or  in  any 
degree  resembling  the  present,  such  claim,  in  order  to  be  valid,  must  be  made 
with  some  limitation  or  restriction.  In  the  ordinary  case  of  common  appurte- 
nant, the  right  ciiiiMot  be  claimed  for  commonable  cattle  without  stint  and  to  any 
number,  but  such  right  is  m'^asured  by  the  cai)ability  of  the  tenement  in  ques- 
tion to  maintain  ilie  cuttle  during  the  winter;  levancy  and  couchancy  must  be 
averred  and  piMvcd.  Again:  in  the  case  of  common  of  estovers,  or  a  liberty  of 
taking  wood,  called  in  the  books  honse-bote,  ploiigh-bote,  and  hay-bote,  such 
liberty  is  not  wholly  vague  and  iudetcfrminate,  but  coiillned  to  some  certain  and 
dellnite  use.  The  like  of  the  common  of  piscary.  The  nature  of  these  rights  is 
thus  compendiously,  but,  we  believe,  accurately  given  by  Mr.  Justice  Black- 
SToNi;:'  'These  several  species  of  coin  mous  do  sdl  originally  result  from  the 
same  necessity  as  common  of  pasture,  — vi/,.,  for  the  maintenance  and  carrying 
OQ  of  husbandry,  —  common  of  piscaiy  being  given  for  the  sustenance  of  the 
tenant's  family,  common  of  turbary  and  fire-bote  for  his  fuel,  and  house-bote, 
ploiigli-bote,  carl-l)ote,  and  hcdiii'-liote  lor  repairing  liis  house,  his  instruments 
of  tillage,  and  the  necessary  fences  for  his  ground;'  that  is,  for  a  certain  and 
detliute  puipt)se.  *  *  *  The  nature  of  the  tenement  (so-called),  a  brick- 
kiln, leads  to  no  conclusion  one  way  or  the  other  as  to  the  e:.Lent  of  the  claim 
and  demand  upon  the  soil  of  the  plaintiff.  It  may  liave  been,  at  the  time  of  the 
trespass,  of  any  dimensions  and  capacity.  It  may  have  been  during  the  thirty 
years  of  alleged  enjoymei^.,  continually  varying,  and  consequently  the  quantity 
of  clay  required  for  the  purpose  of  making  bricks  thereat  may  have  varied  also. 
There  is  no  limit.  No  amount  of  clay  (measured  by  cart-loads  or  otherwise) 
required,  no  numl»(>v  of  bricks  (estimated  by  hundreds  or  thousands)  claimed  t) 
be  made,  is  given  or  arteiiii>tt!(l.  What  is  it,  therefore,  but  an  indellnite  claim  to 
take  nil  the  clay  'out  of  and  from  the  said  close,  in  wluch,'  etc.;  in  other 
words,  to  take  from  the  plaintiff,  the  owner,  tlie  whole  closed  "•' 


§  10.  Likewise  a  Usage  of  Trade  must  be  certain  and  uniform. — The  rule 
tliat  a  custom  innst  be  certain  and  uniform  is  also  strictly  uiiplied  to  usages  of 
trade.*    Wliere  a  usage  of  the  clolh-lrade  was  set  up,  to  the  effect  that  on  the 


1  5Q.  B.  115. 

a  2  Ilia,  coiiiiii.  .Ti. 

s  See  al-o  I'eiipin  v.  Sliakospoar,  6  Term 
Aep.718;  Duliei-ley  r.  I';iiKe,'2Terni  Iteii.  :!'.U; 
8h!ikesi>i'ar  r.  Peppin,  t> 'l"eriii  Hep.  741;  Val- 
enlini!  r.  I'onny,  Nov,  14.'>;  Dean  of  Kly  v. 
Wan-i!ii, '2  Atk.  18'.»;  ilaywai  i  r.  (;nnt)iiij?tcin, 
1  Lov.  231;  Hay  ward  r.  Cuniiiiigioii,  1  Sid. 


;Wi;  Earl  of  Manclu'stcr  f.  Vnle,   1  Hauiul. 
28. 

*  Fay  V.  Alliance  Ins.  Co.,  16  (iray,  VtH; 
Vo8  V.  l?ol)iiison,  St  Johns.  102;  Touro  v. 
Ca.ssin,  1  NoU  &  M.  17;!;  Philips  r.  Wheeler, 
lOTexa.s  r>:!(!;  Oelrieks  v.  Ford,  '_>;*.  Mow.  41); 
SitiKli'lon  r,  llilliard,  I  Strnbli.  '20.!;  Stroiif,'  v. 
(Jraiid  Trunk  It.  C!o.,  15  Mich.  200;  Kogcrs  v. 


A    USAGE    OF   THADK    .MUST   BK    CKUTAIN. 


33 


Illustrations. 


?ale  of  cloth  the  buyer  hart  throe  days  within  wliich  to  send  word  to  the  seller 
that  he  would  Keep  the  ^oods,  otherwise  the  seller  could  send  for  them  back, 
srmie  of  the  witnesses  called  to  support  Ihe  usaue  spoke  of  three  days  as  the 
time,  oliicrs  a  week,  and  one  a  month.  Bikkoi  (iii,  J.,  held  that  the  usat^e  was 
too  uncertain  to  be  valiil.'  And  in  Seicell  v.  Corp,'  where  the  custom  alle<;Ced  was 
oue  to  pay  veterinary  surgeons  for  attendance  as  well  as  medicines,  and  the  wit- 
ness called  stated  that  tlie  j^oneral  rule  was  to  cliarge  for  attendance  when  there 
was  not  much  medicine  required,  Bkst,  C.  J.,  said:  "Such  a  usa^e  as  this  is 
too  uncertain."  So,  a  custom  amouii  wholesale  merchants  to  allow  their  sales- 
mi'U  pay  for  time  lost  by  sickness;  '  a  usaiie  auioni;  brokers  that  tlie  margins 
put  up  to  cover  the  advance  in  the  commodity  to  be  purchased  must  be  "  rea- 
Bonuble,"  no  rule  by  which  a  "reasonable"  marjiin  can  be  determined  being 
shown;*  a  custom  amoni;  commission  merciuuils,  on  sale  of  iirain  for  cash,  to 
wait  two,  three,  or  four  days  for  the  money.*  In  a  Maryland  case,  wliere  there 
was  set  up  a  usaiic  among  merchants  In  the  city  of  Baltimore  to  deliver  to 
purchasers  merchandise  sold  for  cash,  without  demanding  tiie  cash,  and  without 
the  vendor  waiving  his  right  to  cash  payment,  and  tlie  witness  called  to  establish 
it  said  thiit  he  delivered  the  article  without  the  cash  only  when  lie  (considered 
t!ii'  purchaser  good,  the  court  said:  "  This  is  not  a  usage,  whicii  must  be  some 
thiiiu'  fixed,  certain,  and  uulversal.  Ausige  which  diff'rs  upon  the  actiou  of 
each  particular  person  is  no  usage.  One  man  may  think  the  puiclia-ier  good, 
when  his  next  neighbor  may  think  otherwise;  and  this  is  said  to  be  a  usage  I  •'  ''■ 
And  where  it  was  attempted  to  prove  a  usage  that  cash  sales  were  not  under- 
stood as  for  cash  in  hand,  but  that  payment  might  afterwards  be  made,  the 
court  said:  "  The  evidence  did  not  tend  to  prove  it.  No  two  of  the  witnesses 
agree  as  to  what  it  was.  Its  protean  form  is  recognized  at  one  time  as  giving 
three  days,  and  again  as  giving  twenty-flvo  days;  sometim /s  count iiig  from  the 
day  of  sale,  and  sometimes  from  the  date  of  delivery.  Then,  it  is  evanescent. 
It  is  in  full  force  in  one  month,  and  gone  the  next.  Certaiuty  is  one  of  the 
requisites  of  a  good  custom."  '  In  an  Indiana  case,  a  custom  among  commission 
merchants  that  flour  of  a  grade  not  suitable  for  the  market  and  sale  In  the  city 
of  Indianapolis  was,  in  the  absence  of  special  instructions,  forwarded  to  the 
city  of  New  York,  was  held  to  lack  certainty,  and  to  be  therefore  inadmissible. 
"It  may  well  be  asked,"  said  Elliott,  J.,  "to  what  grade  of  flour  does  this 
alleged  custom  apply,  to  render  it  certain.  The  allegations  imply  that  flour  of 
sonii'  grade  or  grades  is  suitable  to  the  Indianapolis  market.  If  the  custom 
delhii'd  that  quality,  then  it  might  be  inferred  that  all  other  grades  were  excluded, 
and  ^Uould  be  shipped  to  New  York.  Or,  if  the  custom  defined  the  partieular 
grades  that  were  not  suitable  to  the  Indianapolis  market,  tiieii  the  commissiuu 


Mochanicn*  Ins.  Co.,  1  i?t>>r.v,  606;  ChilU  v. 
Sun  Mutual  Ins.  Co.,  3  Sa-idf.  26;  lUiiiols 
Masons'  Beiuivolont  Soo.  v.  Ualdwin,  86  III. 
479;  Cad  well  v.  Meek,  17  111.  *i();  Crawford 
•.  Cl;uk,  15  III.  661;  Thorn  v.  Hioe,  15  .Me. 
803;  Ishiim  r.  Fox,  7  Ohio  St.  317;  Liusley  i'. 
Lovely,  86  Vt.  IH;  Hintou  v.  Coleman,  45 
W18.166;  United  States  u.  BuchanL  i.Crabbe, 
636;  United  States  v.  Buchanan,  8  Jew.  *«; 
United  States  r.  Duval,  Uilp.  356:  Unltea 


State.i  V.  McCall,  Gilp.Si!;?;  Collinij.s  v.  Hope, 
3M:ish.  O.  Ct.  U9. 

Wood  r.  Wood,  1  Car.  A  P.  59. 

»  1  Car.  &P.  3it2;  ante,  p.  2. 

■'  Swo't  r.  I.each,  6  Itradw.  212. 

♦  Oelrick.s  r.  Ford,  j;)  How.  4i). 

^  Stewart  v.  Scudder,  2  Am.  L.  Reg.  80; 
Cntlin  i>.  Smitli,  24  VU  K). 

'■  Foley  r.  .Mason,  6  .Md.  37. 

'  Union  U.  Co.  v.  Yeajjcr,  34  iud. :. 


I 


■Ul 


Hi 
it' 


34 


ON    THK    KEQUISITK8   TO    THKIli    VALIDITY. 


CiTttiinty  I{t'<|iiirc(l  of  a  I'sajj^e. 


*  \ 


mercliant,  on  the  receipt  of  flour  of  the  condemned  grades,  woiihl  at  once  know 
his  duty.  Tiie  plaintiff's  siiipment  consisted  of  two  different  tirades,  siu'^le  X 
and  XXX,  and  yet  botli  are  condemned  as  unsuitable.  The  question  involved 
concerns  tlie  shipper  as  much  as  it  does  the  factor;  and  it  is  important  for  liim, 
in  his  effort  to  become  a  competitor  in  tlie  Indianapcdis  marlci;t,  to  know  what 
grade  of  (lour  is  suitable  to  the  tastes  of  those  dependin:;  on  that  market  for 
supplies,  or  that  may  be  demanded  l)y  the  particular  use  to  which  it  luiv  be 
applied;  or,  if  certain  i^rades  are  to  be  condemned  as  unsuitable,  and,  un  ler  ihe 
alleged  custom,  sent  to  New  York,  to  know  what  such  grades  are.  If  such  a  cus- 
tom exists  amou'^  tin;  commission  inerehants  of  that  place,  and  is  certain  and 
well  dellned,  they  sliouhl  be  able  at  once,  by  the  inspection  of  the  brand  or  quality 
of  ilour,  to  determine  it  promptly.  The  alleged  custom,  it  seems  to  us,  is  void 
for  unccM'tainty;  because,  by  its  terms  as  stated  in  the  pleadiniis,  it  is  imi>()s-il)!e 
to  determine  what  grade  of  flour  is  and  what  is  not  subject  to  its  provisions, 
and  condemned  to  be  shipped  to  New  York.  It  would  seem  to  leave  each  factor 
to  determine  from  his  own  judgment,  if  not  his  peculiar  tastes,  to  what  grades 
the  custom  ap[)lies.  If  each  day  is  to  determine  its  application,  making  It 
apply  to  one  grade  to-day  and  another  to-morrow;  If  at  one  period  it  applies  to 
all  grades,  and  at  another  to  none,  it  is  not  only  wholly  uncertain,  but  is  mis- 
named a  commercial  usage."  ' 

In  Berkshire  WunUcti  C<iiap<m>j  v.  Proctor,''  an  iimkeeper  being  sued  for  a  sum 
of  money  stolen  from  the  bed-room  of  a  guest,  the  defendant  relied  upon  a 
custom  of  the  inns  in  that  place  for  guests  to  deposit  money  in  the  ollice  -iife. 
Four  i)roprielors  of  hotels  were  called  to  establish  it.  Two  of  them  tesiitled 
that  tliey  had  i)riiiteil  regulations  posted  up  in  tlie  rooms  of  their  resp  iiive 
hou-e-  requiring  their  guests  to  leave  their  money  and  other  valuable  artie'  -  at 
tlie  ollice,  to  be  deposited  for  safety  in  the  safe;  the  other  two  testilied  thai  liiey 
had  printed  regulations  posted  up  in  their  houses,  but  they  contained  no  uoiice 
as  to  depositing  valuables.  The  usage  was  held  inadmissible.  "  In  two  of  the 
four  houses,  therefore,  of  whose  ctistom  evidence  was  particularly  given,''  said 
Fletcuki!,  J.,  "it  was  the  custom  to  give  particular  notice  to  the  guests  to 
deposit  their  money,  and  in  two  of  them  there  was  no  custom  to  give  such  notii/e. 
There  was,  therefore,  in  the  custom  of  these  four  houses  a  very  striking  want  of 
uniformity  in  a  matter  Of  vital  importance.  In  regard  to  the  custom  of  the 
guests  in  these  houses,  it  appears  from  the  evidence  that  some  of  them  deposited 
their  money;  and  this  is  all  which  does  distinctly  appear.  The  evidence  wijolly 
fails  to  estal)lish  tlie  position  that  there  was  any  general,  uniform  custom  of  the 
guests  '^ven  in  those  four  houses  to  deposit  tlieir  money  in  the  safes."  In  a 
Maryland  ca^^e,  a  deed  of  composition  provided  that  "  borrowed  money"  slioiild 
be  p;iid  in  preference  to  certain  oilier  debts,  and  it  was  claimed  that  these  words 
had  by  usnge  a  peculiar  meaning  among  the  merchants  of  the  place.  One  witness 
defined  the  phrase  as  "money  loaned  on  cull,  for  which  no  charge  is  made;" 
anotlier  said:  "If  a  person  ask  me  to  take  money  on  Interest  for  ttfteen  or 
twenty  days,  it  would  be  borrowed  money;"  a  tliiiil  said:  "  If  money  is  loaned 
for  twelve  mouths,  on  interest,  it  is  not  a  debt  of  honor,  nor  if  loaned  for  an 
Indcllnite  time;"  iiml  a  fourth  witness  testilUii :  "  If  a  party  lends  me  money  for 


1  Wallace  v.  Miirgun,  'J:)  Iml.  :VM).    And  nao 
Cincinnati,  etc.,  It.  I'o.  r.  Uoal,  15  Iml.  ;U5. 


■■^  7  (11-11.417. 


A    USAGE    OF    TRADE    MUST    BE    CERTAIN. 


oO 


Ii:u-trali()iis. 


my  accommodation,  trusting  to  my  honor,  for  an  in(ktinito  time,  I  consider  it  a 
de!it  of  honor."    The  court  held  that  the  custom  was  inadmis'^ilih',  as  lackinj;  the 
elements  of  certainty  and  uniformity,  sayiu^:   "Tlic  testimony  is  incouvi^tcn*^ 
anil  contradictory.     A  standard  so  varial)io   is  inuapable   of  application,  ar.d 
cannot  control  the  well-nndersiood  meauinLi;  of  words."  '    In  one  case,  a  custom, 
In  niMkiiis;  survey-'^  of  tioverunient  hind,  to  enclose  more  land  than  the  warrant 
actually  called  for,  was  set  up.     Several   witnesses  were  called  to  prove  it. 
A.  testitied  that  it  was  customary  for  the  earlier  surveyors  to  make  an  allowance 
of  live  per  cent  in  the  length  of  the  line.     B.  said  it  was  usual  for  surveyors,  in 
surveying  rough,  broken,  and  bushy  land,  to  add  four  inches  to  the  length  of  the 
chain,  and  some  did  and  some  did  not  add  to  the  length  of  the  line  measured 
with  a  chain  thus  elongated.     In  resurveyiug  some  of  the  old  surveys,  he  had 
found  the  lines  generally  to  be  longer  than  called  for,  some  exceeding  this  length 
five  per  cent  —  some  more,  and  some  less.     A  few  of  the  old  surveys  would  fall 
short  of  the  distance  called  for;  there  was  a  great  variety  of  measurement  in  Ihe 
old  surveys,  but  generally  they  measured  the  distance  called  for.     He  knew  of 
no  general   standard   or  proportion  of  excess.     C.  confirmed  his  statements. 
•'It  is  certain,"  said  the  court,  "that  almost  every  locator  has  appropriated  1o 
hhnself  more  land  than  his  w;irrants  would  entitle  him  to;  but  the  ([uestion  is, 
whether  there  has  Ijeen  any  certain  and  uniform  rule  by  w!iich  this  class  of 
persons  have  been  governed  in  this  respect,  and  whether  that  rule  i^  the  oue 
insisted  upon  by  tlx^  plaintiffs  counsel.     *     *     ♦     The  testimony,  so  far  as 
proving  any  known  and  certain  custom,  proves  the  reverse."  ^    In  another  ease, 
in  order  to  prove  a  custom  that  the  captain  of  a  steamboat  had  authority  to  bind 
the  owners  by  giving  a  premium-note  for  insurance,  four  witnesses  testified. 
One  said  that  the  custom  was  for  an  owner  and  the  captain  to  insure  for  all  the 
owners,  the  captain  signing  the  premium-note.     Another  said  that  it  was  ....s- 
tomary  for  the  captain  to  execute  the  note ;  but  whether  under  authf)rlty  of  one  or 
all  of  tiie  owners,  he  did  not  say.    A  third  testified  that  it  was  customary  for  the 
captain  to  insure  for  the  boat  and  owners,  but  added,  u[)on  cross-examination, 
thai  he  knew  of  no  case  where  the  captain  was  not  dire(;tetl  by  the  owner.     The 
fourth  said  that  it  was  customary  for  the  captain  to  insure  for  the  owners,  as 
was  done  in  tliis  ease.     On  this  evidence  it  was  held  that  the  custom  was  not 
proved,  Goui>o\,  J.,  saying:   "  From  this  testimony  it  is  impossible  to  say  what 
the  custom  or  usage  is,  if  indeed  any  such  exlNts.     Has  the  captain  power,  upon 
his  own  motion,  to  insure,  or  does  it  require  the  joint  action  &»  a  part-o\\;!"r  and 
the  captain  ?     May  he  insure  the  boat  wiien  there  is  but  a  single  owner,  or  is  he 
confined  to  cases  where  there  are  soveral  joint-owners  ?    These  are  (luestions 
which  are  legitimately  raised  from  the  evidence,  and  as  that  evidence  does  not 
clearly  and  dellnitely  answer  either  of  them,  the  court  should  not  have  [)ermitted 
it  to  go  to  the  jury."'' 

A  u-age  of  trade  to  which  no  limit  is  assigned  to  its  extent  is  liad.  Where  a 
usage  of  the  brewing  and  di'^tillery  business  was  set  up,  and  the  opposing  coun- 
sel asked,  "  What  are  the  limits  of  the  custom?  Does  it  exti'ud  to  all  the  dis- 
tilleries in  the  kingdom,  to  all  the  brewers  in  the  kingdom,  to  all  tiie  pul)lieans 
in  the  kingdom?    Or  is  it  a  custom  which  is  applicable  fo  a  particular  class, 


'  Murniy  v.  Spencci',  Jl  Md  .V20. 
"  nu»tou  (>.  McArthur,  7  Ohio,  54. 


^  Ailania  v.  IMttMburg  Ins.  (Jo.,  70  I'a.  >l.  411. 


fli 

;feli| 

1 

ffim^^H 

mm 

''' ' '  i  '^ 

,£■  "UjlvH 

'li'lii 

■    i^f  1 

■;iv;M 

Ifwi 

ii:| 


■  % 


m 


Vf'.f  !   I'l 


it* 


Hi 


at) 


ON    TIIK    KEQUI8ITES   TO   THEIR   VALIDITY. 


Customs  iiinst  be  Compulsory  and  Consistent. 


Ill 


within  how  many  miles  of  St.  Piiiil's,  or  within  what  district?  Would  it  prevail 
as  between  a  distiller  at  Brentford,  a  lirewer  at  Romford,  a  publican  at  Ilei;rate, 
or  is  it  contined  to  IIami)stead,  Uniilfurd,  and  Houuslow?"  the  vice-chancellor 
thou?j;ht  the  objection  unanswerable.' 

<i  11.  A  Cugtom  must  be  compulsory.  —  A  custom  must  be  compulsory,  and 
not  left  to  each  one's  option  to  obey  It.'^  "  Otherwise,"  says  Mr.  Buowxi:,'  "  it 
loses  the  imperative  character  of  a  law.  It  is  true  that  asreeinents  whidi  w.'re 
founded  in  consent  were  the  orijiin  of  customs;  it  is  true  that  the  observances 
which  have  become,  as  It  were,  acted  or  pictured  laws  were  at  first  matters  of 
option;  but  whenever  they  are  established  customs  they  must  have  ceased  to  be 
matters  of  choice,  and  mu.st  have  an  obliiratory  clement  —  a  binding  force. 
Were  it  in  the  option  of  every  man  whether  he  would  conform  to  a  custom  or 
not,  were  it  a  matter  which  niisht  be  referred  for  decision  to  his  ^{lod  pleasure, 
it  is  evident  that  it  would  be  invalid  upon  another  i^round,  viz.,  uncertainty.  A 
custom,  to  be  binding,  must  be  current.  It  must  be  known  and  understood  by 
those  whose  conduct  is  to  be  affected  by  its  existence,  whose  transactions  are 
to  be  inrtuenced  by  its  factual  terms;  but  if  its  terms  were  alterable  at  the  will 
of  each  man,  if  it  was  in  the  option  of  each  man  to  bo  bound  to-day  and  not 
bound  to-morrow  by  the  custom,  any  one  whose  conduct  might  have  to  conform 
to  such  a  rule  would  lind  it  impossil)le  to  shape  his  actions  accordintjly,  and  any 
transactions  which  might  have  to  be  influenced  by  such  a  precept  would  bo 
varying,  indelinite,  uncertain,  and  absurd."*  Thus,  as  laid  down  by  Black- 
8T»)\K,  *'  a  custom  that  all  the  inhabitants  shall  be  rated  towards  the  mainte> 
nance  of  a  bridge  will  be  good ;  but  a  custom  that  every  man  is  to  contribute 
thereto  at  his  own  pleasure  is  idle  and  absurd,  and  indeed  no  custom  at  all."  * 

§  12.  A  Cuatom  must  be  consistent.  —  Customs  must  bo  consistent  with 
each  other.  One  cannot  be  set  up  in  opposition  to  another,  for,  if  contradic- 
tory, they  destroy  each  other.*  If  two  customs  are  contradictory,  it  is  evident 
that  they  cannot  both  have  been  estiiblished  by  mutual  consent.  Thus,  the 
allegation  of  one  custom  is  not  to  be  met  by  the  allegation  of  another  custom 
inconsistent  with  the  first,  but  rather  by  the  denial  of  the  existence  of  the  first 
as  a  custom.  This  rule  might  well  fall  within  that  other  one  which  requires 
that  a  custom  shall  be  reasonable;  for  the  absurdity  and  unreasonableness  of 
two  mutually  inconsistent  customs  is  evident,  and  if  one  custom  be  admitted  to 
exist,  the  other,  which  is  inconsistent  with  it,  violates  the  requisite  of  reason- 
ableness, and  is  therefore  invalid.'' 


§  13.  A  Custom  must  be  continued. — \  custom  must  be  continued ;  there  must 
be  no  interruption  or  temporary  ceasing  of  the  right.*     *'  If,"  says  Mr.  BuowNK, 
*'a  custom  ceased  and  recommenced,  its  new  beginning  would  be  within  the 


'  Daun  V.  Oity  of  London  Ilrewery  Co., 
L.  K.  H  Eq.  155. 

•  1  Dane's  Abr.,  chap.  26,  §  6. 

•  U>ag08  Sk  Customs,  34. 

•  Aauins  t>.  Otterback,  15  How.  539;  Col- 
lliig-^  V.  Hope,  :i  Wasb.  C.  Ct.  149;  Doniiell 
V.  Colunibiun  Ins.  Co  ,  i  Suiiiu.  3ii(i;  Wil- 
roi'h'  r.  Phlllliis,  1  "Xy::..  Jr. »',. 


»  1  nia.  Coinin.  61. 

«  1  Dane's  .Vbr.,  cbiip.  26,  i  7;  Aldred'i 
Case,  9  Kep.  SS  b;  Kenc.hin  v.  Knight,  I  Wils. 
253;  Parkin  v.  RadclilTe,  1  Boa.  &Pul.  283. 

'  Urownc  on  Usaircs  A  Cuslnni.s.  '25. 

6  1  Dane's  Abr.,  rhap.  Sfi,  ';  .'. 

»  Umigus  &  '.Customs,  l(j. 


CUSTOMS    MUST   BE    CONTINl  KU. 


a? 


Acts  of  Accominotlfitioii. 


memory  of  man,  and  vvoulil  be  due  to  the  will  of  an  individual,  which  would 
excliule  it  from  tin-  delinition  of  a  custom,  and  uialvc  any  usau;*'  "subject  to  such 
a  lapse  void  as  i  custom.  But  an  interruption  wliich  is  to  prove  valid  as  a'jainst 
a  custom  must  i)e  an  actual  interruption  of  the  usai;e,  and  not  simply  an  inter- 
ruption of  tiie  possession  of  tlie  rifjht.'  One  of  tlie  common  illustrations  will 
serve  to  make  tiiis  clear.  Thus,  if  the  inhabitants  of  a  parish  liave  a  customary 
ri^ht  to  water  ttieir  cattle  at  a  certain  pool,  a  mere  (liscontin\iance  of  the  prac- 
tice for  ten  years  would  not  destroy  tlie  custom,  althoujih  it  would  add  to  the 
difficulty  of  proving  its  existence.  If,  liowever,  the  rij^lit  be  discontinued  for  a 
siiiLClo  day,  tliat  would  prove  the  non-existence  of  any  assorted  custom  analogous 
witli  the  rij^ht.  But  it  must  l)e  remembered  that  tlie  existence  of  a  custom 
depends  upon  proof,  and  tliat  the  discontinuance  of  a  custom,  as  it  tends  to  ia- 
crease  the  dilfioilties  of  proof,  tends  also,  to  lliat  extent,  to  tlie  abolition  of  the 
custom.  It  cannot  !)e  doulited  that  a  custom  can  be  aluouated  by  a  custom,  and 
that  many  of  tlie  usages  whicli  at  present  exist  are  built  upon  the  ruins  of  for- 
gotten customs.  Tliat  these  anteiH'dent  customs  wiiicli  differ  from  on.  .^resent 
practice  or  common  haliit  must  be  foi'tjotten,  to  render  our  present  custom  valid, 
is  evident;  otlierwi.se  the  custom  whicli  is  now  in  v()u;ue  would  not  have  that 
element  of  antiquity  and  imuiemoriality  to  wliich  we  have  already  alluded.  But 
as  the  acts  of  some  make  a  law,  so  can  the  acts  of  some  abrogate  it."  "  A 
custom,"  said  Tind.m.,  C.  J.,  in  Ids  judgment  in  Tusun  v.  Smitli,-  "comes  at 
last  to  an  aureemeut,  wliich  has  iieen  evidenced  by  repeateil  acts  of  as.seiit  on 
bull)  sides  from  the  earliest  times,  iiefore  time  of  memory,  and  continuiuu;  down 
to  our  own  times,  that  it  lias  become  the  law  of  a  parlicular  place."  So  of  a 
usa!i;e  of  trade.-'  A  usauie  which  is  proved  to  exist  at  a  luniod  long  before  the 
time  of  the  transaction  wliicli  it  is  introduced  to  affe(;t,aiid  not  since,  is  inadmis- 
sible.* And  for  similar  reasons.  In  Felhnos  v.  Mat/or  of  AV/u  york,-'  the  custom 
of  a  city  department  in  charniiiii'  interest  on  sums  advanced  to  contractors  was 
held  inadmissible,  it  appearin;;  tliat  the  custom  liad  been  one  way  down  to  the 
year  1858,  under  one  comptroller,  and  another  way  from  1858  to  1878,  under 
other  comptrollers.  Where  the  knowled:j;e  of  a  witness  who  was  introduced  to 
prove  a  usage  was  not  later  than  a  year  before  that  time,  the  usage  was  held  not 
sutllciently  proved.' 


kin 


:  fii  i 


)'' 


r'    '1 

"  ill 


-f 


§  14.  Acts  of  Accommodation  or  Indulgrence  do  not  make  a  Usage.  —  Thus 
it  is  that  a  mere  habit  of  accommodation  or  indulgence  does  not  establish  a 
usage.'  A  creditor,  for  example,  may  indulge  a  debtor  in  one  or  two  cases 
w'.ihout  thereby  hindiug  himself  to  do  likewise  in  the  future.''  As  said  by  Hoar, 
J.,  in  Mi'Icalf  v.  IIVW,'  "  There  are  many  usages  of  trade  which  liavt;  notliing  to 
do  with  tlie  contracts  of  parties,  and  which  ctinnot  be  set  up  to  modify  or  con- 
trol tlieiii.  It  is  very  customary  for  mercliauts  to  pay  their  deiils  by  clieckf^ 
upon  a  bank;  and  tiiis  may  be  very  well  known  to  persons  who  deal  with  them, 


'  Co.  Lit.  114. 

'  0  .\(1.  &  K.  400. 

•'  Jolin.xoii  )•.  Stocldnrd,  lOn  Mn.«s.  anfi:  Me 
Masters  c.  I'eiiiisylvania  K.  Co.,  5!)  I'a.  si.:,' I. 

^  Miclii.Lrim  Ceiilriil  l{.  Co.  c.  Colcinan.   js 
Mich.  440;  Walker  v.  liunoii,  (!  Minn.  50f. 


6  IT  Hun,  21!). 

"  Malt'  r.  Uil)l)s.  4:l  Iowa,  ;(S0. 
"  tallowy.  Kllis,  I,-,  (iray,  i-.".!;  f'ineii'.iiati, 
etc.,  It.  Co.  c.  lioal,  15  Iml.  .!4."). 
"  Itrcnl  r.  Cook,  lUi.  ilou.'JOS. 
»  Ante,  II.  14. 


\}^ 


% 


38 


ON    THK    UKQUI81TKS    TO    TIIKIK    VALIDITV. 


Acts  of  Accommodation. 


m  ' 


and  yet  no  one  is  bound  to  receive  a  clieck  in  (liscli.irLre  of  a  promise  to  pay 
money.  It  may  bo  a  custom  in  some  kinds  of  l)Usiuess  to  pay  woriiinen  in  orders 
(or  floods,  or  in  jjoods  Ivcpt  for  s;di'  l)y  llieir  employer,  or  not  to  pay  waives 
punctually  at  the  time  they  are  due,  and  tiie  fears  or  necessities  of  the  laborer 
may  induce  Idni  to  yield  to  tlie  custom,  and  ai-ccpt  payment  in  a  manner  or  at  a 
time  convenient  to  the  employer;  but  it  would  hardly  be  contended  that  such  a 
custom  could  be  regarded  in  determiiiins  the  lejjal  effect  of  a  written  atrroe- 
inent."  Thus,  thv  common  act  of  courtesy  wliich  indnces  a  man  to  call  on  his 
mechanic  to  rectify  what  is  amiss  in  his  job  does  not  e^tal)lisil  a  custom  to 
exomratc  the  trade  from  responsibility  for  bad  work.'  In  a  Maine  case  it  was 
said  thill,  however  common  it  may  be  for  persons,  in  receiving;  payments,  to 
waive  their  strict  IcLjal  ri!j;hts  and  to  make  use  of  a  paper  currenc^y,  such  a  hal)it 
would  not  l)ind  any  one  who  chose  to  insist  upon  his  leiial  rii^lit  to  rec<'ive  jjjold 
and  silver.'  In  a  Maryland  ease  it  is  said:  "  Itecause  the  plaintiffs  had  been 
constant  customcTs  of  tlie  bank,  which  had  diseounti'd  for  IIkmu  many  liki;  drafts 
and  immediattdy  sent  them  on  for  acceptance,  when  the  law  did  not  re(|uire  it, 
was  no  just  reason  to  compel  the  bank,  at  the  risk  of  beini^  held  liable  for  neg- 
ligence, to  [)ursuc  a  similar  course  in  tlie  future.  The  concession  of  such  a 
favor,  though  repeated  in  sundry  inslances,  ouu;iit  not  to  becoi  .trued  to  operate 
as  imposing  upon  the  bank  the  imperative  duty  of  its  constant  opetiliou,  and  as 
conferring  u|)on  the  plaintiffs  tlie  ai)solute  right  to  demand  and  insist  upon  its 
continuance.  However  much  the  plaintiffs  might  be  disap|>ointed  in  their 
expectations  upon  the  subject,  the  legal  relations  of  the  parties  were  not 
clianged  thereby."^  A  usage  amou'j;  mills  in  Lowell  to  give  a  certillcate  of 
lionorable  discharge  to  an  operative  who  had  worked  a  certain  term  and  per- 
formed certain  eouditious,  wliieh  certillcate  would  olitain  him  employment  in 
otlier  mills,  does  not  render  it  obligatory  to  give  such  a  certillcate  in  all  cases 
where  the  comlitions  have  been  complied  with;  the  giving  of  such  a  discharge 
is  a  matter  of  discretion  in  the  particular  mill.'  Where  a  contract  as  to  land 
gives  no  right  to  cut  the  timber,  evidence  tliat  tin-  owa  m-  had  permitted  others, 
under  similar  contracts,  to  cut  timber  without  considering  them  trespassers,  is 
irrelevant.*  And  tlie  mere  act  of  a  railroad  company  in  paying  for  the  medical 
.services  of  an  employee  injured  in  its  service  would  hardly  establish  such  a  cus- 
tom for  subsequent  cases  which  might  arise." 


■im 


§  15.  But    cannot    ba    chancred    to    the     prejudice    of    otbt         ,:•,    ..omo 
Oases.  —  Hut,  though  the  practice  of  a  particular  lin-iiness  mav  .'  iwne  be 

altered  by  those  eimaged  in  it,  yet  an  arbitrary  change  cannot  b:;  m  '  •,  to  the 
prejudice  of  others,  without  some  notice  of  the  change.  Perliaps  , n  ii()tice 
wouUl  not  be  sulHcient,  if  a  party  was  not  given  sulllcient  time  to  adapt  his 
conduct  to  the  new  custom.  As  sustaining  this  view,  the  Engli^iJi  case  of 
Ciimmiitg  v.  Sictnd''  seems  in  point.  Bankers  had  taken  up  certain  bills  lor  a 
customer  upon  the  security  of  proceeds  to  be  expected  from  certain  consigu- 


1  Somcrljy  r.  Taiipaii,  1  Wright,  570. 

»  Lord  r.  r.iiil):niU,  is  Mo.  ITS. 

3  Citizens'  Hank  r.  (irallliii,  ;!1  MiL.'iO'. 

*  Tliorntou  r.  sullulk  .Man.  (.-'o.,  10  Ciish. 


876. 


''  Norton  v.  Heywootl,  20  >re.  ",")i). 

«  Mobile.  PIC,  IJ.  Co.  r.  Jtty,61  Ala.  247. 

'6Ilurl.  &N. 'J5. 


^1 


ACTS    or    ACCOMMODATION. 


;}!> 


m 


of 

lor- 
in 
ase3 
•ge 
and 
irs, 
is 
lical 
cus- 


fino 

be 

Ihc 

lice 

liis 

of 

ir  a 


Ciistoin.s  must  be  Cjltiifral. 


mi'iits,  and  at  the  same  time  allowed  liim  to  conliniie  to  draw  upon  iiis  dcposil 
acioiin!  with  them.  This  practice  had  existed  for  some  time,  wlien,  some  ;;ond.s 
remaining  unsold  and  tliu  market  price  having  gone  down,  they  refused  to  pay 
one  of  his  drafts.  In  an  action  by  tlie  customer,  it  was  left  to  the  jury  to  say 
wliether  the  course  of  dealing  of  the  |)arties  hat!  been  understood  as  on  this 
foolin",  or  whetlur  it  was  a  mere  act  of  indulgence  on  the  part  of  the  bank;  if 
the  formiT,  tliey  wn'  in>.irueted  that  the  bankers  could  not  suddenly,  and  witli- 
out  notice  to  him,  interfere  witli  this  custom.  The  jury  found  for  the  plniMtiff. 
••I  am  of  the  o|)iniou,"  said  I'oi.r.ocK,  J.,  "  tliat  tiie  case  was  properly  left  to 
the  jiirv-  No  donl)t,  if  a  person  lias  been  accustomed  to  accept  bills  for  the 
aeciimmodation  of  anotln^r,  he  may  refuse  to  do  so  any  longer:  for  tliere  is  no 
tenancy  of  a  man's  credit  which  requires  any  time  to  put  an  end  to  it.  But  that 
la  not  the  ease  where  a  course  of  dealing  has  prevailed  antl  valiu;  has  been  given 
for  the  accommodation.  It  makes  no  difference  whether  tli«  one  parly  is  a  factor 
or  a  banker,  if  the  circumstances  are  such  as  to  justify  the  other  in  drawing, 
though  he  has  not  a  cash  credit,  lie  is  entitled  to  do  so  until  he  has  notice  that 
the  acconunodation  is  discontinued.  The  question,  then,  is  vvhetlKU'  tliere  was 
beiueen  the  plaintiff  and  the  bank  a  cour.se  of  busincjss  which  could  not  be  put 
an  >  nd  to  without  a  reasonable  notice.  It  seems  to  me  that  there  is  no  objection 
to  ilie  mode  in  which  the  case  was  left  to  the  jury,  and  that  tliey  have  arrived  at 
a  i)roper  conclusion."  Martin,  Watso.v,  and  ('iiannkm.,  H1$.,  concurred.  Of 
coiir-e  there  is  a  difference,  and  this  case  recognizes  it,  between  such  an  estab- 
lislird  practice  as  to  entitle  the  customer  to  demand  its  continuance  until  he  lias 
reei  ived  a  proper  notice  of  its  cessation,  and  a  mere  voluntary  courtesy,  whicli  a 
man  may  extend  on  one  day  to  one  person,  and  refuse  the  next  to  another  or  the 
same  person.  In  tiie  latter  case  tlu;re  is  no  imi)lied  promise  to  repeat  or  con- 
tinue the  favor;  the  party  receiving  it  nnih-rslands  this  well,  and  there  is  nothing 
on  which  a  different  idea  could  be  founded.  This  would  seem  to  be  the  correct 
test  in  such  cases;  aiul  though  each  case  would  depend  (Milirely  upon  its  pii.rtic- 
ular  facts  and  circumstances,  its  .status  would  not  be  dillicult  to  determine.' 

§  16.  A  Common-Law  Custom  mu3t  be  Qeneral.  —  In  Viner^s  Ahrid'jnv'nt  ^ 
It  is  saidi  "Information  in  the  lixcliequer  against  a  merchant  for  lading  wine 
in  a  strong  ship;  the  defendant  pleaded  license  of  the  king,  made  to  J.  iS.,  to  do 
80,  which  J.  S.  had  granted  his  authority  thereof  to  the  defendant,  and  that 
there  is  a  custom  among  merchants  througiiout  England  that  one  may  assign 
such  license  to,  and  that  the  assignee  shall  enjoy  it,  etc.,  which  was  demurred 
in  law;  and  it  was  agreed  for  law  that  a  man  cannot  prescribe  custom  through- 
out lingland,  for  it  it  be  throughout  Knglaud,  it  is  a  common  law,  and  not  a  custom; 
contra,  if  the  custom  liad  been  pleaded  to  be  in  such  a  city  or  countv.  *  *  ♦ 
Notf  the  diversity."  In  Fitch  v.  Ii'cwlin(j,^  while-  it  was  held  that  a  custom  for  all 
the  iuliabitants  of  a  parish  to  play  all  kinds  of  lawful  games  and  pastimes  in  a 
close,  at  all  seasonable  times  of  tlie  year,  was  good  :  viit  a  similar  custom  for  all 
per^cuis  whatever  happening  to  be  in  the  said  par.  h  vas  lield  bad,  Bullku,  J., 
saying:  "  How  that  which  may  be  claimed  by  all  thr  inhabitants  of  Knglaud  can 
be  tlie  subject  of  a  custom,  I  cannot  conceive.    Customs  must  in  tlieir  nature  be 


■ir-li 

I'! 


1  yA 


'■  .i'^^n 


>  'k 


K«1 


I'm 


d 


'  See  Ilai'iiRi'  v.  Cnlhctun,  7  How.  (Mis8.) 
so;!;  Van  .Viiice  v.  UanU  of  Truy,  S  IJiirb.  ;U2. 


•-  Tit.  "  Custom." 
■^  i  II.  ISIack.  ;ji»S. 


40 


ON    THK    UlCyUlSlTES    T(J    THKIR    VALIDITY. 


!!'! 


i  I 


Gfiieiality  —  How  fur  l{c<|ni>itc', 


confined  to  indivicluals  of  a  particular  description,  and  what  is  common  to  all 
manliind  can  never  be  claimed  as  a  custom."  Later,  in  Tijson  v.  Sunfli,^  wliich 
was  an  action  of  trespass,  to  which  a  custom  for  all  victuallers  to  erect  booths 
on  the  laud  in  <iaestion  during  certain  fair-days  was  set  up,  it  was  ol)jocted  that 
it  was  irtiieral,  as  aniountiu'j;  to  the  couiuion  law.  But  this  objection  was  over- 
ruled. "  Ad'.nittiu'j;,  for  the  purpose  of  ar-juuienr,"  said  Tin'dal,  C.  J.,  "that  a 
custom  which  would  comprehend  within  it  all  the  lieije  subjects  of  the  crosvn 
would  be  bad,  on  the  ijround  of  its  amountinj;  to  the  common  law,  we  thini<  the 
custom  before  us  is  not  of  that  description;  for  in  the  present  custom  there  are 
these  restrictions,  which  necessarily  limit  its  cjenerality:  The  parties  who  claim 
the  benetit  of  it  niu^t  be  victuallers:  they  must  be  victuallers  comins;  to  keep 
the  fair,  and  they  must  come  at  the  precise  period  of  the  year  at  which  the  fair 
Is  flxed.  Now,  under  the  description  of  victuallers  mcntiouiHl  in  tlie  custom,  we 
cannot  consider  that  very  larye  body  of  persons  to  be  comprehended  wiio,  in 
ancient  times,  apjiear  to  have  been  classed  under  that  desi<j;nation  by  tlie  statutes 
referred  to  in  the  arijument;  but  we  think  the  plea  must  be  taken  to  speak  in 
the  lan-ruajje  of  the  time  at  wiiicli  it  is  pleaded,  and,  as  the  only  term  used  Is 
that  of  '  victualler,' it  must  be  understood  those  only  are  comprehended  who 
are  now  so  termed  —  that  is,  persons  authorized  by  law  to  keep  houses  of  enter- 
tainment for  the  public.  This  removes  the  case  at  once  from  the  application  of 
Fitch  v.  Eawliii'j,'-  wliere  the  custom  comprehended  all  the  liege  subjects  of  the 
crown  being  in  the  parish  at  any  time." 

§  17.  How  far  Generality  is  required  of  a  particular  Custom.  —  As  a  gen- 
eral usage  is  a  part  of  the  common  law,  as  appears  from  tliese  cases,  and  as  we 
have  also  seen  in  a  former  section,  it  seems  somewhat  of  a  contradiction  of 
terms  to  say  that  :„  particular  custom  or  a  local  usage  of  trade  must  bo  ijaiieml 
in  order  to  be  valid,  yet  it  is  so  laid  down  In  a  number  of  cases. '  In  all  cases 
in  which  this  is  stated  as  a  re(iuisite  to  the  valiility  of  a  usage,  the  question  at 
issue  has  been  wiictiier  the  party  to  be  affected  by  it  has  been  proved  to  have 
been  acquainted  with  it.  Knowledge  of  a  usage  is,  as  we  shall  see,  necessary  in 
every  case  in  order  to  bind  a  person  by  its  terms.  .Sometimes  this  notice  must 
be  expressly  proved,  and  sometimes,  from  its  generality  and  notorietj',  the  law 
raises  the  presumption  that  it  was  known.  It  is,  therefore,  only  as  affecting 
the  question  of  notice  that  the  generality  of  the  usage  becomes  material;  for  a 
practice  may  exist  between  two  only,  and  yet  bind  them  in  all  subsequent  deal- 
ings unless  abrogated  by  both.*  .Vnd  as  express  notice  is  didlcult  to  prove, 
because  in  the  majority  of  cases  nothing  has  l)een  said  by  the  parties  in  their 


i 


i^ 


r  ! 


1  1  \.!V.  &  P.  784;  1  Per.  &  Dav.  :!n7. 

-  Aiiti:  \).  :\>. 

■■'  Til..  11  <n  r.  AllK'Vt,  l."i  M(|.  Jlo;  lO.lford 
V.  Ailiiiii!',  J  Uuer,  471;  Citizens'  Uiiiik  r. 
Gnilllin,  :!1  .Md.  ."lOT :  ciiastaiii  v.  Bowman,  I 
Hill, -270;  Folsom  v.  Mercliaiit.s',  etc.,  Ins.  ( 'o., 
38  Mo.  414;  The  ('Dnunonwealtli  r.  .Mii\  li)\ , 
67  Pa.  St.  iOl;  Cpe  i:  Doild,  l:{  Pa.  si.  :;:(; 
Berkshire  Woollun  Co.  v.  Proctor,  7  Ciisji. 
420;  Tanni'Mi  CniiiicrCo.  y.  Merchants'  Iii>. 
Co.,  2-J  Pick.  103;  Guriioy  v.  Behreiul,  ;1  Kl. 
&  1!1.  tio4;    Coventry   v.  (Gladstone,  L.  li.  4 


Ei|.  I'.M  ;  Oi'lricks  r.  Ford,  2:i  IIow.  I'.i;  Rich- 
ards m  c.  (i't  Id  11(1,  2!  IIow.  II;  CiitliiKui  v. 
Cainpljcll,  S7  lll.'.l-;;  ISi-sell  r.  Ryan,  ■.':!  III. 
ms;  Dnvall  r.  Hank,  I  (iill  &.J..!1 ;  '.)  IJill  &  J. 
.".1  ;  Uiij;i!rs  r.  .Mochauic-'  Ins.  Co.,  1  stury, 
TiIh;;  Knllon  Ins.  Co.  v.  Miliier,  2:5  .Via.  420; 
Sweeting  v.  Pcarco,  7  O.  IJ.  (v.  s.)  44!);  De 
llcrli'l  r.  Supple.  I;i  Upper  Canaila  Cli.tU.S; 
It  Upper  Canada  Ch.  421 ;  Fisher  v.  WL-stern 
Assnr.  in.,  ii   Upper  ('ana. la  (J.  IJ.  2.")."). 

■  Cuinniiiig   ('.  Sli.ind.   ."i    Hurl.    &  N.  95; 
llolchkiss  r.  Artisans'  I'.aiik,  42  Barb.  517. 


GENKRALITY HOW    FAK    KEQUISITK. 


41 


Illustrations. 


ni'LTotiatiotH  about  the  usa-Jte,  It  is  obvious  tliat  in  the  i;rc';Uf<t  number  of 
in^tiiiicts  it  becomes  absolutely  uvccssary  to  prove  sucli  a  usaue  as  the  law 
will  pnsanii'  the  party  iMleniled  to  be  bound  by;  ami,  consecpiently,  in  all  these 
cases  the  iriiicnility  of  the  custom  Ijeeomes  vital,  and  the  rule  that  a  usage  must 
be  iicni  ra!  is  applied  by  the  courts  with  riiror. 

It  l)L'(  omes,  therefore,  of  importance  to  determine  what  the  c<u  ts  understand 
by  this  rule.  And  in  the  tirst  place  it  is  settled  that  a  usaije  may  l)e  "  general," 
as  this  term  1^  used  here,  notwithstanding  that  it  isconrtned  to  a  particular  city, 
town,  or  villu'ji'.'  It  may  l)e  generally  known  in  that  city,  town,  or  village,  and 
be  unilcrstood  by  all  persons  dealing  there,  and  yet  may  not  exist  in  any  i)lace 
beyoml.  But  the  usage  of  a  single  house,-  or  of  one  person  only,''  or  of  a  single 
mill,'  or  of  one  railroad  company,Ms  iusulllcient.  It  lias  been  held  that  evl- 
deiic  ■  of  a  custom  in  the  cities  of  New  Urleans,  Oineinuati,  and  Loui>\ille 
would  not  be  alone  siitrK'ient  to  prove  a  general  custom  of  merchants  upon  the 
Mis>issi|)i>i  Kiver  and  its  trii)Utaries.«  And  it  is  held  in  .Ma-;sacliusetts  that  it 
does  not  shos,  a  usage  of  trade  to  show  that  many  persons,  or  a  majority  of 
persons,  euj;agi(l  in  the  business  practice  a  particular  mode.  The  practice 
must  be  universal;  it  must  be  the  mode.'  Isolated  instances  of  a  certain  prac- 
tice in  a  particular  bank,  — as,  for  instance,  the  payment  of  a  loss  in  an  unusual 
case,"  —  or  proof  of  a  few  instances  of  dealings  in  one  or  two  other  banks, 
do  not  establish  a  general  usage."  A  particular  banking  usage  must  a|)i)ly  to 
a  place  ratlier  than  to  a  particular  bank.  It  must  be  the  rule  of  all  the  banks  in 
the  place  or  it  cannot  be  a  valid  usage.  If  every  bank,  it  has  been  said,  could 
eslalilisli  its  own  usage,  the  confusion  and  uncertainty  which  would  ensue 
would  ureatly  exceed  any  local  convenience  resulting  therefrom.'"  In  fUrkt'iird  v- 
i?/W;/»',"  Lord  Ei,i.EX»<)i:()i;(iii  said:  "  [  cannot  hear  of  any  arl)itrary  distinction 
between  one  part  of  the  city  and  another.  It  is  not  competent  to  bankers  to 
lay  <lown  one  rule  for  the  eastward  of  St.  Paul's,  and  another  for  the  westward. 
They  might  as  well  fix  upon  St.  Peter's  at  Koine." 

To  establish  a  usage  on  the  part  of  numicipal  corporations,  it  must  bo  a 
general  usa'ze  among  like  towns  and  cities,  and  not  a  usage  in  a  single  town  or 
City.i- 

lu  a  ease  where  the  question  was  whether  there  had  been  a  deviation  by 
a  vi;ssel  which  would  discharge  the  underwritci-,  and  a  witness  stated  that  he 


,    i 


lich- 
\ii  I'. 
It  III. 
1  &  J. 
ory, 
|«0; 
I)e 
hits; 
Itci-n 

'.15; 


1  Gleason  v.  Walsh,  4:^  Me. :(07;  Thompson 
Ilaiiiillnii,  l-J  I'ick.  4'.'ii;  Porkms  r.  .Ionian, 
35Mc. -J:!;  Clark  i:  IJaker,  11  Mole.  |ss. 

-■  Welior  r.  Kiii!,'slan(l,  S  Hosw.  115. 

■■•  liurr  r.  sicUlo,  17  Avk.  4'.'s. 

^  sciilo-isjugi-r  c.  Dickiiixdi,  .5  Allen,  47; 
Stcvi'iis  r.  Ueeves,  aiite,  \>.  7. 

liL'tioit,  etc.,  K.  (,'((.  r.  Van  Steinburg,  17 
Midi.  '.VI.  [Jul  a  court  may  refii.se  to  charge 
that  tlie  usaRC  of  one  boat  docs  not  eoiisii- 
tuto  a  (•ii>liim  of  the  tnule,  wlun-e  no  foun- 
daticiii  for  .such  a  ('liai-j^i'  .■i|i|n'ars  from  the 
eviilcMcc.     I.aiiffforil  c.  tiiminiiigs,  4  Ala.  4(). 

''  WaUh  r.  1- rank,  !'.»  Ark.  270. 

"  I'orlcic.  Mill,  1|.|  Ma.-s.  KKi. 

"  .AUc'ii  V.  Merchiints'  IJank,  22  Wend.  '.'15. 


»  Chesapeake  r.ank  r.  Urowii,  2!)  Mil.  483. 

'"  Adams  v.  Oiicrback,  1.5  How.  ").!!). 

"  2  (amp.  .■i:{7. 

'-■  liiitler  r.  City  of  Charlostown,  7  <jray, 
12.  "  In  eoiislileriiig  lliis -^ulijci't  of  usage," 
says  Shaw,  C.  J.,  in  SpauMiug  r.  Lowell,  23 
Pick.  71,  "  it  i.s  proi)er  to  add  lliat  it  is  not  a 
casii.il  or  oeeasional  exeretse  of  a  power  by 
one  or  a  few  towns  wlilrh  will  constitute 
such  a  usage,  but  it  mii.'^t  be  a  usage  rea- 
sonable in  il.iL'lf,  general  among  all  lovvns  of 
like  situaiion  as  to  settlement  ami  popula- 
tion, and  of  long  (N)ntinuaiice."  "A  ea.-ual 
or  occai-ional  exercise  of  a  powi'r  by  one  or 
a  few  towns  will  not  eonstituio  a  usage." 
Hood  v.  Lynn,  1  Allen,  103. 


'    '\ 


f 


: 


:"i  I 


!::Pi    > 


42 


ON    '1«B    RKQUISITES   TO    TUKIK    VALIDITY. 


Generality. 


had  knowtt  two  vessels  on  a  .similar  voyau;e  mike  a  similar  call,  Mr.  Justice 
WAsiii.Ntiri».v  said:  "The  evidence  given  ♦  *  *  is  very  far  from  proving 
a  u-^.iie  of  trade.  Twenty  instances  may  have  occurred  of  vessels  not  being 
otherwise  provided  with  persons  acquainted  with  tlie  tratll  •  in  m  iles  on  the 
M'l'ii,  calling  there  to  obtain  such  a  person;  and  as  many  instances  miy  have 
occurred  of  vessels  proceeding  with  a  supercargo  brought  from  IIks  port  (jf  tlie 
vessel's  departure,  relying  upon  tln»ling  sucli  a  character  al  Coro.  But  there  is 
no  proof  of  a  usage.  It  sliould  appear  that  this  course  is  uuifonuly  pursued, 
and  that  it  should  be  known  as  well  to  the  underwriters  as  to  the  insun.'d.  The 
for.iier  must  take  notice  of  the  usage  of  trade,  but  then  it  must  be  uniform  and 
fixed."  And  a  verdict  was  returned  for  the  defemlants.'  And  in  a  subsoiiuent 
case  Mr.  Justice  Stoky  said:  "As  to  the  question  of  usage:  in  order  to  support 
that  defence  it  was  not  sutllcient  that  a  few  instances  could  be  jjrodticed  in 
which  misters  in  the  trade  liad  transshipped  goods,  and  no  objection  had  been 
made,  Tlie  course  of  the  trade  must  be  uniform  and  general  to  entitle  it  to  be 
considered  as  a  legal  defence.  It  should  be  so  well  settled  that  persons  engaiied 
In  the  trade  must  be  considered  as  contracting  with  reference  to  tlie  usage ;  and 
as  the  proof  of  such  usage  lay  on  the  defendant,  the  jury  ought  not  to  change 
the  general  principles  of  the  law  as  to  the  rights  of  the  parties,  unless  the  usage 
were  fully  proved  to  be  uniform  and  independent  of  the  consent  of  particular 
shippers."  '■'  In  an  old  Knglish  case,  where,  In  a  case  of  insurance  effected  from 
Liverpool  to  Jamaica,  the  ship  put  Into  the  Isle  of  Man,  and  it  appeared  that 
ships  bound  on  that  voyage  sometimes,  but  not  usuallij,  put  in  there,  it  was  held 
that  the  proof  did  not  amount  to  such  a  well  known  and  settled  us.ige  of  the 
trade  between  Liverpool  and  the  West  Indies  as  to  prevent  it  from  being  a 
deviation.'  In  C7/i7rf  v.  Snn  Mutual  Insurance  Company,*  where  a  policy  of 
marine  insurance  was  on  a  "  whaling  voyage,"  the  policy  having  been  executed 
in  New  York  on  a  Rhode  Island  whaling-ship,  the  plaintiffs  claimed  tliat  the 
words  above  quoted  included  the  taking  of  sea-elephants  on  the  beaches  of 
islands  and  coasts,  as  well  as  the  catching  of  whales  wherever  found.  The 
defendants  offered  to  prove  that  previous  to  the  date  of  the  policy  It  had  been 
the  general  and  uniform  usage  of  assurers  at  the  port  of  New  Bedford,  when  it 
was  intended  to  employ  in  taking  sea-elephants  a  vessel  Insured  on  a  wlialiug 
vo\'age,  to  insert  a  permission  to  tliat  effect  in  the  policy,  for  which  an  additional 
premium  was  paid.  The  trial  judge  excluded  the  testimony,  and  his  ruling  was 
ailirmed  on  appeal.  "  On  considering  the  point,"  said  S.vNDKOiii),  J.,  "  we  think 
the  proposed  evidence  was  inadmissible,  for  two  reasons  at  least,  viz. :  1.  It  wa.s 
a  local  usage,  not  extending  to  New  York,  where  the  policy  in  suit  was  made, 
nor  to  Warren,  Rhode  Island,  where  the  assured  resided,  and  to  which  port  the 
vessel  belonged.  2.  It  was  the  usage  of  the  assurers  only;  and  although  from  the 
payment  of  premium  we  might  Infer  the  assent  of  the  assured,  the  limited  terms 
of  the  offer  would  leave  it  In  doubt  whether  the  assent  was  a  ratillcatiou  '>r 
admission  of  the  usage,  or  was  caused  by  greater  caution  and  a  desire  to  leave  no 
room  for  controversy.  If  It  were  the  well-established  usage  at  New  Bedford 
that  a  whaling  voyage  did  not  Include  sea-elephantlng,  the   underwriters  aiul 


'  Martin  v.  Delaware  Ins.  Co.,  2  Wash.  C. 
Ot.  26 1. 

«  Tiotl  c.  Wood,  1  Gull.  444. 


3  Salisbury   v.  Townson,  1  Aruuiilil    on 
Ins.  5.'). 

*  3  Sandf.  26. 


_    \] 


)eing 
1  the 
have 
{  the 
■re  18 
-iiied, 

The 
a  and 
niueat 
ipport 
ceil  in 
I  been 

to  be 
ii^ir^od 
c;  and 
chanu;e 
i  nsa'j;c 
i-ticuhir 
3d  from 
ed  that 
fas  held 

of  the 
being  a 

)licy  of 

iccuted 

hat  the 

.ches  of 
The 

;id  been 

when  it 

WlKllillg 

.litional 
u'^  was 
think 
It  was 
made, 
port  tlie 
i-oni  tlie 
;d  terms 
ition  ■)r 
leave  no 
nedftird 
,ers  and 

luoulil    OQ 


It 


1^ 


OKNKKALll'V  HOW    lAK    i:Kgri>irK. 


43 


Illustrations. 


thp  ni.i-teiN  of  whalers  in  that  port  could  liave  proved  It  far  more  satisfactorily 
than  ii  couM  pos<il)ly  be  done  by  tlie  production,  without  expl mation,  of  ti>e 
policies  exeiiited  Ijy  and  between  them.  It  would  then  have  appeared  whether 
tile  insurers  tlicre  refused  to  pay  a  loss  in  ca^cs  where  the  vessel  insured  had 
taUi  11  sea-elephants  witliout  any  permi-isive  clause  in  the  policy."  In  Cnurk  v. 
W'Usim  Coll  C'linp'tntj,'  the  plaintiff  was  employed  by  the  defendant  In  Its  mine, 
and  was  injured,  while  ;iscendini-  the  shaft  in  a  case,  from  a  drill  which  fell 
from  a  dcxcudiim  cai^e.  He  souirl.*^  a  rticovery  on  the  liroiind  that  the  caiios 
were  defective  in  not  i)cing  supplied  '.'ilh  bonnets,  or  coveriui^s.  As  tendinst  to 
show  tliat  tlie  ca^es  were  defectively  eousfrueted,  and  that  the  defendant  wag 
t'li'nfore  L;uilty  of  nc'^liiience  i'l  usin^  them,  the  plaintiff  called  a  witucs-;  who 
tcsilliil  to  havin;^  W(n'kcd  for  many  years  in  coal-mines  in  Wales  and  Penn- 
s\  VMuia  where  steam  machinery  was  used.  He  was  tliereiipon  asked,  "  What 
w.l^  the  custom,  or  how  was  tlie  machinery  con-<trueted  —  how  were  tlu^  cages 

i^irucced  as  to  boiniets?"     To  which  lie  answered,  "I  only  worked  in  one 

sh.iit.''  He  was  tlien  asked,  "How  was  that  as  to  bonnets?"  and  replied, 
*«  Tiiere  was  wliat  we  called  bonnets,  or  covers,  tliere  in  that  one  shaft."  In 
tlie  .Su|)i'euie  Court  this  evidence  was  htdd  to  have  been  improperly  admitted. 
•'  Mefore  a  custom  can  affect  the  riuhts  of  parties,"  said  the  court,  "  it  must  be 
so  ^(  .ural  tliat  a  knowledice  thereof  by  them  may  bo  presumed.  For  instance, 
before  tlic  defendant  could  be  deemed  guilty  of  ne:rli:j;ence  in  the  construction 
or  use  of  the  cages,  the  custom  under  whi(;h  it  was  sought  to  make  it  liable 
should  he  so  '.^eucral  that  the  defendant  could  be  presumed  to  have  knowledge 
ol  its  cvistence.  The  fact  that  bonnets  were  used  in  one  mine  in  Pennsylvania 
or  .Viles  ;rid  no  tendency  to  prove  the  existence  of  such  a  c  i-it  >  n  I'.i  -r;,  m  i(;h 
kss  liere.  Besides,  mines,  of  necessity,  must  be  of  various  deptlis,  and  what 
Would  he  proper  machinery  for  one  might  not  be  for  another.  What  is  cu.s- 
toiiiury  in  Pennsylvania  may  not  be  so  here.  If  it  had  been  sliown  that  operators 
of  mines  in  this  State,  similarly  situated,  and  using  substantially  the  same  kind 
of  uiacliiiiery,  generally  constructed  cages  with  bonnets,  it  could  be  reasonably 
pn  sumed  tliat  defendant  had  knowledge  of  such  custom,  and  the  failure  to  do 
what  was  usual  and  generally  done  by  others  in  a  similar  business  and  under 
similar  circumstances  would  have  a  tendency  to  sliow  that  these  cages  were 
improperly  and  negligently  constructed."  In  an  action  for  the  use  of  a  canal- 
boat,  it  was  attempted  to  be  proved  that  a  custom  existed  in  and  about  the  port 
of  New  York,  when  the  owner  of  freiirht  takes  charge  of  the  boat  and  pays  all 
the  expenses  during  the  winter,  to  deliver  the  boat  to  tiie  owner  in  the  spring, 
free  of  charge,  and  to  charge  nothing  for  the  use  of  the  boat.  Tliis  was  sought 
to  be  established  by  the  testimony  of  two  witnesses  wlio  hid  biMm  in  the  habit 
of  so  leaving  their  boats  without  charge  for  the  same.  One  of  thein  testilied 
that  the  boat  is  unloaded  and  delivered  in  the  spring  without  charge  for  its  use, 
the  one  being  set  off  as  an  equivalent  for  the  other.  It  was  held  that  tiie  proof 
was  not  sullicicnt  to  e.stablish  a  general  custom.'-  Proof  that  a  certain  practice 
of  factors  "  was  very  common  in  the  trade,  but  a  .few  factors  in  Mobile  would 
not  do  so,"  is  insudlcient  to  estal)lish  a  usage.'  And  evidence  that  it  was  **  very 
uuu.-ual "  to  do  a  certain  thing  Wi)uld  not  prove  a  usage  not  to  do  so.* 


'  4(;  Iowa,  17. 

'  Sipperly  v.  Stewart,  50  Barb.  62. 

•  Aii>till  /•  C'l-awfoid.  7  Ala.  S.'K. 


<  Rennell  v   Kimljall,  5  Allen,  886.    And 
set;  Cooke  t'.  Fiske,  12  Gray,  491. 


hm 


rm 


■  i  1 


m 


1       <^ 

1 
1 

,;'  # 

I, 

.t' 

* 

.i: 

B 

ill 


44 


ON    THK    REQl  ISITKS    TO    TIIKIK    VALIDITY. 


GfinTiility. 


1 1       '. 


'■f 


On  the  other  hand,  it  Is  dear  tliut,  ii  iisu'^c  of  trailc  may  Iiavc  a  iricalcir  or  less 
territorial  extent,  or  a  more  ^ciit'ral  or  rtstrictcd,  ucconllii^  lo  tlic  cMrc;iiiii- 
staucos  which  nave  risi'  to  it;  '  ami  so,  in  Suninrr  v.  Tijson,'  i'\  idciice  that  a 
certain  custom  prevailed  in  three  different  estalilishnients  was  considered  suffl- 
cient  to  estal)lisli  it  as  ;ieneral.  Ayain:  in  an  action  to  recover  for  a  nnniber  of 
'  "s  whieli  liad  Ix^come  lod'jed  hi  tlie  defendant's  Itooni  on  tlie  l'emi;fewassett 
Kiver,  and  had  l)een  converted  and  sawed  liy  lum,  the  pininliff  Dlfend  testimony 
that  it  was  the  custom  in  that  locality,  where  loi^s  were  thus  niiuijh'd,  for  the 
pp.rty  ownini;  the  boom  to  separate  and  pass  by  the  boom  all  loi^s  not  his  own; 
but  it  appeared  that  there  was  no  other  boom  on  that  river.  Tiie  trial  court, 
however,  admitted  tlie  evidence,  and  the  ruliu'.;  was  alllrmeil  on  appeal.  "The 
fact  that  there  was  only  one  boom  on  the  river  at  tiiat  time,  and  that  tlie 
defemlant  was  the  owner  of  that  one,"  saitl  Amks,  J.,  "furnishes  no  objeclina 
to  the  competency  of  the  evidence.  There  may  have  been  an  established  ami 
ancient  usaiie  in  that  locality  and  in  that  department  of  business,  of  the  kind 
which  1h(!  plaintiff  offered  to  prove,  and  the  defendant  may  have  habitually  com- 
plied with  it.     If  so,  it  was  competent  for  tlie  i)laintiff  to  show  it."  ' 

In  an  Iowa  case,*  where  a  usa<j;e  among  the  merchants  in  a  certain  city  to 
regard  certain  paper  as  neiiotiabie  was  set  up,  and  it  was  ol)jecti;d  tliat,  as  by 
the  State  Conslitnlion  ail  laws  were  required  to  be  uniform,  and  therefore,  liy 
statute,  a  note  could  not  be  ue,!;;t>tiable  in  one  city  and  not  so  in  another,  ncitlu  r 
could  a  custom  be  recoiiuized  which  would  result  in  the  same  thiuji,  the  court 
said:  "It  must  be  remembered,  Iiowever,  that  we  have  no  statute  prohlbitiuL; 
such  custom.  A  custom  in  a  particuLu-  locality,  when  not  in  violation  of  law, 
becomes  a  law  to  parti(;s  contracting  with  a  knowledge  of  it.  The  same  n'en  lal 
rule  as  to  what  mal<es  custom,  and  its  application  in  the  construction  of  ccni- 
tracts,  obtains  uniformly  over  the  State.  It  mii;iit  as  well  be  claimed  that  ail 
parties  must  make  the  same  kind  of  contracts  as  that  they  may  not  coutraci  ia 
reference  to  different  customs." 

In  Lewis  v.  Marahnll,^  A.,  a  ship-broker,  engaged  with  a  ship-(jwner  to  have  a 
full  car-io  for  the  ship,  the  rates  of  freight  for  which  would  average  4(K'  per  ton, 
and  at  least  nine  cabin-passengers,  passage-money  to  average  £7.5.  Tlie  contract 
was  fullilled  as  to  the  cabin  passengers,  but  the  average  rate  of  freiglit  for  goods 
put  on  board  by  A.  amounted  to  only  32,y  per  ton.  He  shipped  on  board,  how- 
ever, several  steerage-passengers  for  the  voyage,  the  passaiie-mouey  ])aid  by 
whom,  after  deducting  tlie  expense  of  their  diet,  etc.,  wlien  added  to  the  freiglit 
of  the  car^o,  properly  so  called,  ma<le  tlie  average  earnings  of  the  whole  ship  per 
ton  amount  to  more  than  40s.  It  was  held  that,  as  the  contract  was  an  im- 
usual  one,  evidence  was  not  admissilile  to  show  that  the  terms  "  carg\) "  mikI 
"freight,"  used  with  reference  to  the  voyage  on  which  the  ship  was  ungageil, 
would,  by  the  general  usagt!  and  course  of  the  trade,  be  considered  to  compi'ise 
Steerage-passengers  and  tlie  net  prolit  arising  from  their  pas>age-iiioney. 


§  18.  A  Usage  must  be  known.  —  A  usage  must  be  known  to  the  party  to  be 
affected  by  it,  before  a  court  will  permit  its  recognition.*    In  tlie  case  of  geuenil 


1  nixon  c.  Dunham,  14  111.  321, 

»20N.  1I.;5S4. 

»  Saunders  e.  Clark,  106  Mass.  ."31. 


♦  Rindskoflf  r.  l!an-ett,  14  Iowa,  101. 
»  7  Man.  &  (i.  72i». 

•  SLory  ou  Bail.,  §  5i:!;   Ilutcli.  on   Car., 


A  lsa(jf:  must  bk  known. 


45 


Illiistnition.s. 


•CMlll-  I 

hul   a  I 

siiffl- 
her  of 
iissolt 
iinoiiy 
1)1-  the 
i  own; 
court, 

»•  The 
lilt  the 
ijcclion 
ii-(l  ami 
111!  U'ukI 
ly  com- 

clty  to 
It,  as  by 
;foro,  liy 

,  ucithtT 
he  court 
phibifmi? 
I  of  law, 

.  o;t'll    I'lll 
|l  of  '■iii>- 
tliul  ail 
Intvaci  in 

to  have  a 
per  loll, 
contract 

fov  <j;ood3 

paUl  iiy 

1^0  frfi'iht 

:  ship  pL'f 

Is  an  iin- 

o-o"  aiul 

icuixa^ifil) 

IcoHii"'''^ 


lu'ty  to  be 

101. 
Ii.  oil  car., 


coinmiTcial  usascs,  — all  men  Ixinir  tiikcn  to  know  th<'  law,  -every  member  of 
till'  ciimiiiiinity  is  |)r<'*niMr<l  to  know  tlicni,  and  no  one  will  be  heard  to  contradict 
tills  i)ri>iiMi|ilion.'  lint  in  tilt'  case  of  parti(!nlar  usaui's  it  is  different;  knowl- 
pilu'e  of  tiu'in  is  not  leirally  imposed  upon  the  dweller  in  the  |>artienlar  place,  or 
tile  dealer  in  the  particular  market  where  they  oMain,  '  and  is  to  be  shown  by 
ex|)ress  proof,  or  by  evidence  of  their  iieiieraliy  and  antiquity.  These  three 
eleiiieiiis  of  ii  valid  nsaire — anti<iulty  (iinderstodd  ,iot  in  Its  common-law  mean- 
in'^,  l)iil  in  the  sense  of  bein'4  established),  ;;eneraiity,  and  notoriety  —  are 
iniiinalely  connected,  because  the  first  two  are  so  fn  .piently  necessary  to  make 
good  the  tiiird.  Thus,  in  Wnnfrsi,  y  v.  Dnlhj'^  it  was  held  that  a  custom,  not  of 
the  country,  but  prevalent  only  between  the  owin'r  and  tenants  of  a  particular 
lanili'd  estate,  was  not  bindinu  on  a  tenant  who  became  such  without  ex|)res9 
notice  of  its  existence.  And  the  seneral  usages  of  the  insurance  trade  are  pre- 
sniiii  d  to  be  known  to  dealers,*  while  the  particular  ones  are  not.'*  So  of  the 
usiiLTes  of  carriers  and  others.* 

§  r.t.  UsaifeB  not  known  to  Parties  not  binding.  —  Therefore,  the  usaaje  of 
auctioneers  to  charge  certain  fees  for  their  services  is  not  binding  on  a  pur- 
chaser;' the  usa^e  of  factors  as  to  the  disposition  of  the  fuuds  of  their  prin- 


§40;  Ciildwcll  f.  I);i\VM>ii,i  Metc.  (Ky.)  lil; 
Mm-li  f.  Jflf,  I!  Ke-t.  .t  Kin.  iM  ;  r.;iii>ilo\vne 
«.  souu'rvillc,  :!  Kost.  it  Kill.  2.'i(l;  rierce  v. 
Whiiiioy,  •:•!  Me.  1S3;  Martin  r.  Mayiiard,  IB 
N.  II.  Iti.');  Mills  c.  Uslie,  l(i  Tt!Xii -,  SOO; 
Miiiiailc.  Clary,  JO  Ark.  251;  ISoyd  i-.  (Jruliain, 
fi  .Ml.  A|)|i.  40:!;  Martin  v.  Hall,  3fi  Mo.  :!S(i; 
Wiil-li  V.  Mis.sissippi  Transp.  ('(».,  .52  Mo.  AM; 
Thi-  .Mbatros.m-.  Wayne,  16  Ohio,  .'51;?;  Siitlon 
r.  <;icat  Western  K.  Co.,11  .lur.  (N.  s.)  STO; 
BiH'lile  f.  Knoop,  L.  U.  2  Kxcli.  12.5;  .Moore 
«.  Vdiiitlilon,  1  Stark.  N.  P.,  4S7;  Wheeler  «. 
Newbould,  ,5  Diu-r,  21);  Braillcy  v.  Wheeler, 
44  \.  ¥..11)0;  Hijrgin.s  v.  Moore,  ;!4  N.  Y.  42.); 
Dawson  c.  Kiltie, 4  Hill  107;  Doilge  u.  Favor, 
lfi(iiay,82;  Fisher  v.  Sargent,  10  Cu.sh.  2.50; 
Searsiin  v.  Ileyward,  1  Spears,  24'.) ;  White.-.ell 
V.  Crane,  8  Watts  &  S.  :i(i9;  McDowell  v. 
In);i>r-iill,  h  Serg.  &  U.  101;  Patterson  v. 
Franklin  Ins.  Co.,  22  Pittsb.  L.  J.  201  :  Pitre 
V.  Otruu,  21  La.  An.  t>7i);  l-ewis  v.  The  Suc- 
cess, 18  La.  An.  1;  Leach  v.  Perkins,  17 
Me.  4G2;  .SuRurt  v.  Mays,  54  Ga.  5,54  ;  Scott  v. 
SailoM,  :5T  Ga.  :!84;  Xational  Bank  t-.  Biirk- 
harilt,  100  U.  S.  OSO;  Bliven  v.  \e\v  England 
SiM-ew  Co.,  2:1  Flow.  420;  Power  v.  Kane,  5 
Wis.  iiB;  Scott  v.  Whitney^  41  Wis.  .504; 
Itoardman  v.  Gaillard,  1  Hun,  217;  Biitter- 
woilli  !•.  Volken:n;;.4  X.  Y.  S.C.  (T.  &  C.)  650; 
Piicanl  r.  Kdwanls,  50  Barb.  2S9;  Torrance 
V.  Hayes,  2  Upper  Canada  C.  P.  :W8. 

'  Uinrlskolf  V.  Barrett,  14  Iowa,  101 ;  Beatty 
t.  (Iregory,  17  Iowa,  109. 

-When  the  term  "  usage.s  of  traile"  !•; 
made  use  of,  it  admits  of  ar.  aptilicatior. 


either  to  the  general  usages  of  trade  which 
cninpose  the  law  of  merchants,  of  univer.'^al 
aiiiliority  anioiigcommcrcial  men  incivilized 
Societies,  and  forming  one  of  the  constituent 
parts  of  the  l.iws  of  the  Stale,  as  the  general 
law  of  the  land,  or  to  "  usages  of  local 
origin."  as  prevailing  in  a  parti<'iilar  branch 
of  trade.  The  former  are  consiilered  in 
tln!  nature  of  thu-e  positive  laws  of  which 
every  member  of  the  community  is  pro- 
suni'.'il  to  be  (■onver-ant,  and  whi<',h  are 
resorted  to  as  known  and  established  teats 
of  Contracts  in  all  cases  arising  under 
them.  The  latter  depend  upon  the  usage 
of  the  persons  engaged  in  the  tradlc  to  which 
they  ai>ply.  the  knowledge  of  which  is  not 
legally  imjioscd  on  the  community,  but  de- 
rives its  binding  force  from  the  supposed 
knowledge  of  the  persons  engaged  in  that 
particular  species  of  trafllc  at  the  place  or 
in  the  trade  in  which  it  obtains.  The  latter 
may  be  proved  by  witnesses.  Kent,  Ch.,  in 
Sleght  f.  Ilartshorne,  2  Johns.  532;  Hinton 
V.  Locke,  5  Hill,  434;  Buck  v.  Urimshaw,  1 
Edw.  Ch.  140. 

«  Ante,  p.  5. 

♦  Toledo,  etc.,  Ins.  Co.  v.  Speares,  16  Ind. 
52;  Grant  v.  Lexington  Fire  Ins.  Co.,  5  Ind. 
23. 

'  Williams  r.  Niagara  Fire  Ins.  Co.,  50 
Iowa,  .561;  Howard  r.  Great  Western  Ins. 
Co.,  10!)  Mass.  384.    And  see  post,  §§  25,  26. 

c  Barrett  v.  Williamson,  4  M-rLea.'i.  5S9. 
A -.id  sec  post,  rthip.  !TI. 

'  Miller  v.  Burk«,  6S  x.  \,C,J>. 


ri 


.;„«' 


m 


'  il 


'!  I 


ijil-fi'j 


46 


ON    THE    REQUISITES   TO   THEIR   VALIDITY. 


Knowledge  of  tlu-ir  Existence. 


clpals  will  not  nffect  the  latter; '  the  usage  of  a  merchant  as  to  the  commission 
allowed  to  agents  will  not  bind  an  agent;  ^  the  usage  of  cabinet-makers  not  to 
employ  workmen  except  by  the  day,  cannot  affect  a  purcliaser;'  the  private 
custom  of  brokers  as  to  the  deposit  of  checks  will  not  change  the  legal  obliga- 
tion of  a  party  indorsing  a  check  on  a  bank  to  pay  the  same  wlien  legally 
presented;  *  the  private  custom  of  tlio  lessor  of  amine  will  not  bind  the  lessee;' 
the  usage  of  livery-stable  keepers  in  a  particular  city  to  have  a  lien  for  their 
charges  upon  horses  delivered  to  them  to  keep,  cannot  affect  a  customer,*  where 
In  all  these  cases,  respectively,  the  usages  were  unknown  to  the  parties  to  be 
charged.  In  Picrpont  v.  Foiole,''  A.  employed  B.  to  compile  a  school-l)()ok,  called 
the  "American  First  Class-Book  and  National  Reader,"  giving  liiin  ce'-lain  sug- 
gestions as  to  its  character  and  form,  and  paying  him  $500  in  casl..  U.,  in 
return,  conveyed  to  A.  the  copyright,  and  the  book  was  published  by  A.  with 
B.'s  name  on  tlie  title-page  as  author.  It  was  held,  in  the  United  States  Circuit 
Court  for  the  District  of  Massachusetts,  that  only  the  copyriglit  for  tlie  first 
term  had  been  conveyed;  that  the  author,  being  alive  at  tlie  end  of  tlie  four- 
teen years,  had  a  sole  interest  in  the  additional  term;  and  that  a  usage  among 
booksellers  to  consider  the  second  terra  as  passiug  with  the  first  did  not  affect 
B.,  who  was  not  conversr'nt  with  It,  not  being  a  bookseller.  Where  it  was 
attempted  to  show  tliat,  by  the  usage  among  the  publisliers  and  conductors  of 
newspiipers  and  printing  establishments,  a  sale  of  the  good-will  and  subscripLiun- 
list  takes  from  the  seller  the  right  to  establish  a,  competing  journal  and  prl  iting- 
offlce,  it  was  held  that  the  evidence  offered  failed  to  show  a  usage  "  so  well 
settled,  so  uniformly  acted  upon,  and  of  so  long  a  continuance  as  to  raise  a  fair 
presumption  that  it  v,as  kiio-,n  to  both  contracting  parties,  and  that  they  con- 
tracted in  reference  to  and  in  conformity  with  it."*  In  Berkshire  Woollen  MUls 
Company  v.  Proctor,^  the  plaintiff's  ag(>nt  went  to  Boston  for  tlie  purpose  uf 
attending  to  a  lawsuit,  taking  with  liini  about  .$1,000  of  their  money  to  defray 
expenses.  He  put  up  at  the  Marlboro  Hotel,  which  was  liopt  by  the  defendant, 
on  the  15th  of  October,  1841),  and  deposited  the  money  in  his  trunk  in  his  room, 


'  Farmers',  olc,  Ilauk  v.  S|)r,is,'iie,  .Vi  \.  Y. 

6on. 

•-'  Flynn  v.  Mnri'hy,  2  E.  U.  Sinilli,  .378.  In 
this  Oi>se  tliu  plainlilV  siieil  for  coininissions 
in  obtaining,  a--  llie  ili-feiidant's  aK"iit,  or- 
ders for  enslaving,  (lio-siiikitig,  etc.  On 
tlie  trial,  the  i|iie~lion  was  put  to  a  witness 
by  the  (lefi'iiilani's  counsel,  "What  is  the 
usual  and  luiifniin  rale  of  coniuiis^ioua 
allowed  l>y  the  deleiidant  to  his  agents?" 
This  (jueslion  was  held,  on  a|i|>oal,  to  have 
been  \)roiierly  disalloweil.  "The  i-iiiuiry," 
said  WoouiiUKK,  J.,  "  into  tlie  ut-ual  or  uni- 
form praciico  of  the  defeMclanl  in  lejtard  to 
inlying  conimissioiis,  -landing  by  itself,  was, 
1  think,  clearly  hiadniissible.  No  such  pri- 
vate practice  could  alfecl  the  plaintiif 's  title- 
to  recover  what  his  services  were  worili, 
unless  it  was  shown  that  the  plaintiff  ren- 
dered his  services  with  notice  of  the  defend- 
ant's usage  in  his  businoas,  of  a  ohaructur 


so  explicit  as  to  warrant  a  finding,  in  the 
alisence  of  any  express  agn'ouieut,  iliat 
he  assented  to  such  usage,  and  ixMuleicd  liis 
services  in  view  of  the  compensation  wlui'h 
such  usage  would  afford  him." 

3  in  this  case  the  (|uostion  was  wheilier 
furniture  was  sold  by  a  contract  as  U<  its 
pricf!;  and  proof  tiiat,  under  the  regulatiDns 
of  cabinet-makers,  workmen  could  uni  be 
employed  to  manufacture  such  fumiiure 
except  by  the  day,  was  lielil  inailmi--ihlti 
against  a  purchaser  having  no  notice  of  Mich 
regulations.  i!utterw(U'lh  v.  Volkeuin»:,  i 
N.  V.  8.  C.  (T.  &(;.)Gr)0. 

*  Currie  c.  Smith,  4  N.  Y.  Leg.  obs.  ■.A'i. 

'  IJeatty  i'.  Gregory,  17  h>\\:\,  1(W. 

«  Saint  V.  .Smith,  1  Coldw.  .^)1. 

'  2  Woodb.  .V,  ■SI.  23. 

"  Smith  c.  (iibbs,44  .V.  U.  385. 

»  7Cush. -117. 


Ission 
lot  to 

irivate 
)blii?a- 
,egally 
ssee ; ' 
r  their 

where 

i  to  be 

:,  civUed 

in  sug- 

C,  in 

A.  with 
i  Circuit 
tiie  ftrst 
hi!  to  ur- 
ic amoii!!        . 
lol  affect 
■e  it  was 
actors  of 
scripliou- 

pr".  itiu^;- 

II  so  Wf'll 

lise  a  fair 
tlicy  con- 
dlen  .V'//s 
urposc  of 
to  dcfrny 
efiMulaut, 
his  rodui, 

|ing,  ill  the 
lueiit,  Unit 
."inlerva  liis 

Jiiion  wliii'h 

18  whi'ilier 
Bt  as  t"  its 

|,uld  iioi  be 
fuvniliirc 
La(hni--ii'lo 
Itico  ol  >in;l» 
lolkouiio-'.  * 

obs.  ;'.4;>. 
lo'J. 


■m 


KNOWLEDGE    OF    THEIR    EXISTENCE. 


47 


Usages  of  the  Sloci;  Exchange. 


takins;  from  it,  from  day  to  day,  small  sums  as  he  required  thera.  On  the  2d  of 
Novi'inber  he  couuted  his  money,  aii.l  fouud  that  he  had  exactly  ^5t)0,  which  he 
rolled  up  in  a  newspaper  and  placed  at  the  bottom  of  his  trunk,  lockinu;  it.  The 
day  after,  ho  found  that  the  lock  had  been  picked  and  the  money  stolen.  The 
plaintiff  having  brought  an  action  for  the  amount  of  money  stolen,  the  defend- 
ant, at  the  trial,  in  order  to  charge  the  au;ent  with  negligence  in  not  taking 
the  proper  precautions  to  secure  the  money,  introduced  evidence  of  the  custom 
of  iruc'^ts  at  their  hotel  to  deposit  largo  sum.-  of  money  and  other  valuable 
articles  with  the  clerk,  and  in  a  safe  provjdeil  by  the  proprietor  for  that  purpose. 
The  airent  swore  that  he  dul  not  know  of  the  custom.  The  defendant  contended 
that  he  was  nevertheless  bound  by  the  custom,  and  would  be  presumed  In  law 
to  know  it.  But  the  court  insiiucled  the  jury  thai  if  the  plaintiff  s  agent  had 
kiiHuledixe  of  the  custom  of  defendant's  hole!,  the  plaintiff  would  be  bound 
by  it;  that  if  he  had  no  knowledge  of  the  custom  the  plaintiff  would  not  be 
affected  by  it,  unless  he  was  wiliiilly  ignorant  of  it.  A  judgment  fortlie  plaintiff 
was  allinned  in  the  Supreme  Court.  "  Proof  of  knowledge  as  a  matter  of  fact," 
said  Fi.KrciiKU,  J.,  "  is  refpiired  in  order  to  give  effect  to  any  and  all  particular 
usages,  not  of  so  general  a  nature  as  to  furnish  a  presumption  of  knowledge. 
'''acre  certainly  can  be  no  legal  presumption  tliat  every  traveller  wlio  alights  at 
an  inn  lias  Knowledge  of  the  particular  usages  of  that  particular  inn,  of  which 
tliere  is  no  uotice  in  any  way  given  to  him." 

;>  20.  Usages  of  the  Stock  Exchange.  —  [t  is  nevertheless  true,  that  those 
wlio  semi  goods  to  a  market  wiiere  a  certain  custom  prevails  are  presumed  to 
know  the  custom  and  to  act  upon  it.'  In  Sutton  v.  Tatham,' it  was  laid  down 
tliat  a  person  enii)loying  a  l)rolver  on  the  Stock  Excliaiige  iui|)liediy  gives  him 
aiiinorily  to  act  in  accordance  with  the  rides  tlicre  established,  though  the  i)rin- 
cipal  liiinself  be  ignorant  of  them.  "A  person  who  employs  a  broker  must  l)e 
supposed  to  give  him  autliority  to  act  as  other  brokers  do.  It  does  not  matter 
v.-hetlieror  not  he  liimself  is  acipiainicd  with  the  rules  by  which  brokers  are 
governed."  This  lauL.  .  .ge  was  subsequently  approved  in  a  later  ease,  where  it 
was  -aid:  "A  person  wlio  deals  in  a  parlicidar  niarkel^  must  be  taken  to  (L-al 
according  to  the  custom  of  that  market,  and  he  wlio  directs  anotlier  to  make  a 
contract  at  a  particular  place  must  be  taken  as  intending  that  tlie  coiitra<',  may 
b.  made  according  to  the  Usage  of  that  place."  ■'  In  ^'/vuvs  v.  Li'f/,/,^  the  defend- 
ant- (London  iiU'relLinis)  employed  a  broker  in  Liverpool  to  purcliase  .some 
wo  .1.  Tl-.e  broker  iieu'oiiaied  a  >ale  by  the  plaintiff  to  the  defendants  of  certain 
bales  deliver,i!)le  at;  Odessa,  "  the  names  of  the  vessels  to  be  declareil  as  soon  as 
the  wools  were  shipped."  fn  this  iransactiou  the  broker  acted  for  both  i)lain- 
lilf  and  delendants.  ijy  the  custom  of  fvivcrpool,  where  a  contract  contained 
a  ^ilpulalion  that  notice  of  an  event  should  be  given  by  the  vendor  to  the  vendee, 
il  was  usual  for  the  vendor  to  give  the  notice  to  the  broker,  who  communicated 
it  to  tlie  vendee.     It;  was  held,  both  in   tlie  Court  of  K\elie(pier  and  in  tnat  of 


the  Hxehe(|iier  (;iiainl)er,  that  the  ilefendaiils  were   I) 


md  by  such  usage,  and, 


'  Dofoi'dsl  r.  Fiiltiiii  Fire  Ins.  (' 


I  Kali, 


lU'iisley,  87   III.  rM;  I.onorgan 


84;  r,.iil 

f.  siouiu'i,  .V)  III.  44;  Lyon    v.  UulliortsoE 

51  tin,  I..  .1.  401. 


"  10  .\i1.  *  K.  27. 

"  Hiiyditiw.  IJutloiWDiMh,  I  K.icch.  425. 

*  11  K.xcli.  Gl'2;  i  Hull.  .^  N.  JIO. 


fi. 


11 


'^<'n 


n  I 


l'  1 


)  -I      ' 


!  '    ! 


Si  I'     ■ 


48 


ON    THK    UlOyUlsITiOS    T  )    THIOIli    VALIDITV. 


Usages  of  the  Stock  Exchan^'e. 


therefore,  that  a  notice  l)y  the  phiintiff  to  the  broker  of  the  naiin's  of  the 
vessels  oil  which  the  wools  were  shipi^ed  was  a  pertorimuice  of  thai  slipulatiou, 
allliough  the  broker  omitted  to  coinmmiicate  them  to  tlie  defendants.  But  this 
rule  seems  irreconcilable  with  the  general  principle  that  it  is  only  to  be  pre- 
sumed that  the  parties  contracted  accordinac  to  the  terms  of  an  existing  cMstoin, 
and  that  that  presumption  is  capable  of  rebuttal;  for  here  we  see  that  a  usage 
may  make  a  man  liable  to  certain  incidents  of  a  contract,  althougli  he  can  satia- 
factorily  prove  that  lie  was  in  ignorance  of  the  custom.  It  also  seems  to  be  in 
almost  direct  opposition  to  the  rules  laid  down  in  Gahaij  v.  Lloijd,^  Birtlett  v. 
Pentland,^  and  other  cases.'  In  the  first  of  these  it  was  found,  iu  special  verdict, 
that  a  certain  usage  with  respect  to  policies  prevailed  amongst  the  under- 
writers subscribing  policies  at  Lloyd's  Coffee-Mouse  in  London,  and  merchants 
and  otiiers  effecting  policies  there,  and  that  the  policy  iu  question  was  effected 
at  Lloyd's  Coffec-Mouse;  but  it  was  not  found  that  the  plaintiff  was  in  the 
habit  of  effecting  i)olicies  at  that  place,  and  it  was  held  that  this  usage  was  not 
sullieient  to  bind  the  plaintiff.  .\nd  in  the  latter,  a  custom  was  proved  to  be  in 
force  at  Lloyd's  Coffee-House  to  consider  a  set-off  as  payment  between  under- 
writer and  broker,  and  it  was  held  that  such  custom  was  not  binding  on  one  who 
was  not  siiowu  to  be  cognizant  of  it,  or  to  have  assented  to  it.  In  Siof.eting  v. 
Pearce,  the  court  thought  the  custom  lacking  the  elenuMit  of  generality,  it  being 
the  custom  of  a  single  house,  and  this  house  certainly  not  a  "  market."  Yet 
these  cases  were  decided  before  the  case  of  Bayliffp  v.  Bnttcnoorth  —  in  which 
the  general  principle  that  the  usage  of  a  particular  market  binds  him  who  buys 
or  sells  in  it,  whether  lie  is  aware  of  it  or  not,  was  laid  down  —  came  before  the 
Court  of  Excliequer;  and  Pviuvi:,  B.,  while  he  did  not  question  the  authority  of 
these  cases,  distinguished  them  from  the  one  before  the  court,  which  was  one  in 
which  a  person  had  been  authorized  to  make  a  contract  for  a  principal,  and  he 
remarked  that  it  appeared  to  him  that  *'  a  person  who  authorizes  another  to 
make  a  contract  for  him,  authorizes  him  to  make  the  contract  in  the  usual  way," 
and  that  "  the  question  iiere  was  aa  to  the  authority  whicli  the  plaintiff  received."  • 
This  Mr.  Bitowxi:^  considers  a  perspicuous  distiuetion.  The  scope  of  authority 
is  to  be  ascertained  by  the  necessities  which  are  incident  to  the  act  which  an 
agent  has  to  do.  His  action  in  the  matter  will  be  estimated  tjy  the  possibilities 
of  the  trade  in  connection  with  which  he  transacts,  and  these  possibilities  are 
modified  by  the  usages  of  the  trade.  It  is  in  the  power  of  the  principal  to  detlue 
the  agent's  authority  with  a  strictness  which  will  prevent  the  operation  of  the 
customs  of  tlie  place  or  trade.  If  he  falls  to  do  so,  he  must  not  complain  if  his 
autliority  is  interpreted  by  the  ordinary  usages  of  tlie  trade,  and  he  finds  him- 
self bound  by  these  even  though  he  Is  ignorant  of  their  existence.  The  char- 
acter of  the  usage  and  Its  effect  upon  tlie  relation  of  parties  must  be  consideiod 
before  it  Is  admitted  to  affect  a  contract  entered  into  by  persons  wlio  were  igno- 
rant of  it.  Some  usages  are  so  e .  Idently  technical  that  It  would  be  wrong  to  sup- 
pose that  persons  contracting  without  knowing  them  could  reasonably  anticipate 
their  existence,  or  the  existence  of  any  in  their  factual  connection.     Many,  on 


1 


1  8  Barn.  &  Oresa.  703. 
i  10  iJ.ifn.  &  Cro-r,.  TOO. 
•  St',..?i  V.  hwii'in,  i  HaiTj. 


Swooting  y.  Pearce,  7  0.  IJ.  (N.  S.)  U'i;  Adaini 
V.  Peters,  2  Car.  &  Kir.  7lW. 
6-  Mc.  BO":,  *  I  Exch.  42.V 

»  Browue  on  U<>age^  ±  'Ju.-'.():i>t.,  'L'. 


USAGES    OF    THK    MOCK    LXCHANGI 


41> 


Wheu  Bindiiiir,  and  on  whom. 


[  the 
ition, 
t  tM8 
3  pve- 
.stoiii, 
usage 

I  satis- 
3  be  in 
tlett  V. 
eriVict, 
under- 
rcUants 
jffected 

in  the 
was  not 
to  be  in 

II  under- 
one  who 
p.etiwj  V. 
,  it  being 
it."     Yet 

in  which 
wlio  buys 
efore  the 
tliority  of 
;is  one  in 
,  and  he 
lother  to 
lal  way," 
ceived."* 
authority 
which  an 
Abilities 
ilities  are 
to  detlae 
[on  of  the 
lain  if  li's 
Inds  liim- 
jlie  ch:ir- 
lonsldfi-od 
n'e  i:ii>o- 
vjr  to>^i>P- 
Lnticipate 

iMaiiy,  on 
449;  Adami 


I 


the  other  hand,  are  so  pal|)ably  matters  of  general  convonience,  and  belonj^int; 
to  a  irade  in  such  nipUl  ,i;rowth,  that  it  must  be  prt'siiuird  to  he  maiiiiiji  its  own 
laws  in  the  estal)lisluuint  of  customs,  tliat    it  is  riulit   lo  presume  that  the  indi- 
vidual coutractini?,  althouiih  iiinorant  of  tiie  particuhir  custom,  must  liave  been 
aware  of  tlie  existence  of  usaj^us,  may  have  surmised  llieir  nature,  and  even  if  he 
did  not,  was  at  U-ast  williuij  to  enter  into  a  contract  tlic  precise  terms  of  wliich 
were  unliuown  to  him  because  the  incidents  were  to  be  attached  by  a  usaire  of 
wliicli  he  was  iuiiorant.     Just  as  one  man  trusts  another  to  work   for  liim,  with 
"eneral  autliority  as  an  agent,  triisling  to  tiie  honoi'  and  honesty  of  the  iiuii- 
vidiial,  so  may  one  trust  a  usage  to  reguhite  one's  riglits;  for  a   usage  is  the 
outrome  of  tiie  iionor,  liouesty,  fair  (lealing,  and  convenience  of  a  chiss  of  men. 
The  admissibility  of  proof  of  a  usage  as  against  one  who  was  ignorant  of  it  is  a 
queslion  which  might  wi.-li  be  left  to  be  decided  in eacli  individii;;.  case.     "Tiiere 
could,"  says  Mr.  Buownk,  "be  little  reason  for  dissatisfaction  in  the  adinis>ioii 
of  a  rule  of   the  Liverpool   Stock  Exchange  in  evidence  between  parties  not 
meuibers  of  it,  when  the  (juesiion  was,  wiiat  is  a  reasonable  time  for  the  com- 
pletion of  a  .,ale  of  shares  made  at  Livi^rpool  through  the  agency  of  brol<ers." 
The  rule  that  a  party  dealing  by  an  aiient  in  the  Stock  Exchange  is  presumed  to 
iiave  knowledge  of  its  customs,  whether  he  really  knew  of  them  or  not,  is  tlius 
explained  by  Foi.geu,  J.,  in  a  New  York  case:   "Tiiere  are  cases  of  principal 
and  agent,  where  one  has  been  set  by  another  to  do  acts  in  a  particular  business, 
to  be  done  at  a  particular  locality,  —  as  on  Stock  l^xcliaiige,  —  where  the  power  to 
deal  is  a  privilege  obtained  by  payment  (jf  a  lee,  and  is  restricted  to  a  body  which 
ha>,  for  its  regulation  and  gov, 'nun. 'ul,  come  under  ceriaiii  prescribed  rules  or 
estaljlished  usages;  and  as  the  ag^Mit  could  not  do  tin;  will  of  his  i)rincipal,  nor 
could  the  principal  himself,  save  in  coiiloi'iuity  with   "li  )~e  rules  or  usages,  it  is 
held  that  tlie  principal  must  be  bound   tliereby,  whether  cognizant   of  tnem  or 
not,  and  tliat  ignorance  will  not  excuse  him."  '■' 

Thai  persons  having  only  occasional  dealings  with  stock-brokt^rs  canr.ot  be 
boimd  by  all  the  usages  of  the  market  is  sliown  by  the  case  of  Harris  v.  7'nin- 
brid'je,  recently  decided    in   the   courts  of  New   York.     The  dcifendant   was  a 
broker  and  dealer  in  stocks  in  New  York,  doing  business  iindiu-  the  name  of 
Tuinbridgc  &  Co.    During  the  year  1877,  circulars  were  widely  distributed  by  the 
defendant,  describing  metliods  of  speculating  in  stocks,  with  allurinu^  accounts 
of  the  prollts  likely  to  be  realized.     One  of  these  circulars  reached  a  Miss  Har- 
ris, living  at  a  distance  from  the  city.     It  recommended  the  purchase  of  "  strad- 
dle contracts"  as  the  safest  form  of  speculating.     In  Wall  Street  parlance,  a 
"straddle"  is  a  contract  by  which  an  operator  engages  with  a  speculative  cus- 
tomer that  he  will,  during  a  specilled  time,  either  sell  or  buy,  as  the  customer 
may  elect,  shares  of  a  specilleil  stock,  at  a  price  named.     For  this  privilege  of 
electing  to  buy  or  sell,  the  customer  pays  a  round  sura  down.    The  theory  ,s, 
that  if  the  stock  mcntiontid  in  tlu!  contract  falls,  the  customer  can  make  a  corre- 
sponding profit  by  virtue  of  the  right  to  sell  at  the  old  and  higher  price;  if  it  rises, 
he  will  likewise  make  a  profit  by  virtue  of  his  right  to  buy  at  that  price.     If  it 
neither  rises  nor  falls,  the  operator  pockets  the  l)onus  which,  af  the  beginning, 
was  paid  for  the  privilege.    The  circulars  of  Tumbridge  oi.  t^o.  contained  uu 


I  Stewart  t).  Cniity.S  Mee.*^  \V.  liui;  siew- 
»il  I.  AboiUoiu,4  Mue.  it  NV.  211. 


=  Willi-  r.  l'.;iili'\,  i'.t  \.  V.  liil. 


'  '^  i 


-!■ 


.V'\ 


-.H" 


>'*  y  fe?i 


!■     ! 


I   ' 


."iO 


ON   THE    KKQUI8ITES   TO   THElit    "AUDITY. 


Customs  of  Servants  of  Corporations. 


explicit  guaranty  "  that,  in  a  stoclv  we  select,  the  fluctuations  will  af?ij;rep:ate  at 
least  ei^lit  per  coiit  on  a  sixty-day  contract,  costini?  $400;  and  in  case  this  does 
not  occur,  we  will  fjuarantee  no  loss  except  commission."  Miss  Harris  uas 
williiii;  to  make  a  venture  of  the  kind  described,  and  she  sent  to  Tumbridue  & 
Co.,  in  ii  letter  pointedly  referring  to  and  relying  on  the  guaranty,  $425  to  be 
invested  for  her.  They  answered,  apprising  her  that  they  had  purchased  for 
her  account  a  straddle  contract  on  Lake  Shore  and  Michigan  Southern  Itailroad 
stock.  Miss  Harris  thereupon  awaited  tlie  expected  rise  or  fall,  either  of  whicii 
was  to  bring  iier  a  profit  against  lier  S4J5  expended.  The  stock  did  rise  some- 
what more  thiiM  ten  per  cent;  and  uccordinir  to  tiie  plaintiff's  understanding  of 
the  engagement,  she  should  have  received  a  icmittance  of  about  $700  net  profit. 
Instead  of  tills,  the  broker  .sent  her  word  that  just  after  buying  the  straddle  he 
had  sold  one  hundred  shares  short  against  it,  and  that  on  account  of  this  the 
speculation  had  resulted  disastrously,  leaving  her  indebted  to  him  $i).  The 
defendant  claimed  that  he  had  acted  in  accordance  with  a  custom  among  brokers 
to  use  a  straddle  in  such  way,  but  did  not  pretend  that  the  plaintiff  had  any 
personal  knowledge  of  such  custom,  or  had  ever  given  any  con.sent.  The  latter 
did  not  dispute  the  custom,  nor  that  the  step  taken  might  have  been  judiciou.s  and 
fair,  if  done  with  the  customer's  knowledge,  but  took  the  simple  position  that 
the  ilefendant  could  not,  upon  any  pretext  of  usage  of  brokers  uld^nown  to  her, 
depart  from  the  contract  indicated  by  the  letters.  On  this  ground  she  sued  for 
damages  for  the  defendant's  viotation  of  hi>  diiiy  as  broker,  and  recovered  judi:- 
ment.  On  appeal  to  the  Court  of  Appeals,  the  judgment  was  allirmed  in  \u'.t 
favor.  So,  in  a  very  recent  case  in  Nevada  {Maryew  Stroune^,  a  broker  sued 
his  customer  for  a  balance  of  account  which  included  a  large  charge  for  "  tele- 
grams.'' The  latter  said  he  had  expected  lo  pay  the  cost  of  any  telegrams  need- 
ful in  executing  his  order,  but  the  ch:irue  luade  was  exorbitant.  The  broker 
answered  that  it  was  "the  custom  of  brokrrs"  to  embrace  in  one  niessagi' all 
the  dire(;tions  needed  to  be  given  in  behalf  of  all  the  customers  who.se  business 
was  active  at  the  moment,  and  to  charge  each  cusiomer  seventy-tive  cents,  — tiit' 
rate  for  ten  words,  —  which  is  what  his  me>sage  must  have  cost  if  sent  sepa- 
rately, though  perliai)s  two  or  three  times  as  much  as  its  share  of  a  long  mes- 
sage combining  nuuiy  directions.  The  court  held  that  a  broker  cannot  Susiain 
charg(!S  for  nominal  disbursements,  not  aitually  made,  by  |)retext  of  a  custom, 
uidess  hi'  can  i)rove  the  custom  to  have  > AJsted  so  long  aiul  become  so  notorimis 
that  his  employer  must  be  suitposed  to  have  known  about  It  when  he  gave  his 
order.' 


§  Ji.  Customs  ol  Servants  of  Corporations.  —  A  usage  of  the  servants  of  •■ 
corporation,  not  shown  to  have  come  to  the  knowledge  of  the  governing  olliei  is 
of  the  corporation,  does  not  bind  it.-  Vet  the  necessary  nt)tice  need  not  be 
express,  but  maybe  implied  from  the  iioioriety  of  the  particular  custom,     'flu 


I  NeillMM-  of  these  ciises  has  been  yet 
reported.  I  iiin  imhibtcMl  for  their  facts  and 
ilei'isioiis  lo  Mr.  ISenjainiii  Vaiiithaii  Abbott 
and  an  arllilc  fi-oni  liis  in'ii  in  tlic  llitiikprs' 
Miil/d.ine  for  April,  on   llie    I'saj^es  of    tlie 


^toi'k  Market.     Harris  v.  TmnbridKe   is  n'- 

|/oi-tca  III  the  court  below  in  S  Abb.  N.  ('  -"M. 

■-'  .lotmson  V.  (;on('oi'(l  K.  (J!(>.,  4(i  N.  II.  i\'^'< 

Iticirich  i\  I'eniisylviiiiia  R.  Co.,  71  Pa-  ^t- 


li 


USAGES    MUST    BE    KNOWN. 


51 


Corponitions — ("iistnms  of  Sciv.iiits. 


:!ite  at 
s  <\oes 
is  was 
id  lie  & 
to  be 
,ed  for 
ailroiul 
:  which 
;  soine- 
Jino;  of 
,  profit. 
.MW  111' 
this  tlu' 
<,K    Tliu 
brokers 
had  any 
le  latter 
ious  and 
;lon  tliat 
11  to  lier, 
sued  for 
•cd  jiid;:- 
d  m  lier 
kor  sued 
<i  [^,\^^.. 

ins  net  d- 
l)riiki'i' 
sajr>'  all 
business 

s,  —  tilt' 

nt  sepa- 

on<r  uus- 

Susl.iiii 

cusloia, 

lotoriiiiis 

iiave  liii' 


ants  of  v. 
il  otiici  IS 


)1  W 


Id  lu 

JUl. 


Llf^fi  If  If- 


N.  »' 


nil. 


N.  II  i"; 

71  I'a.  J*l- 


CommoHV-cnUh  v.  Ohio  and  PcnuKi/hmnia  llailroad  Comptini/,^  decided  in  the 
SiipreiiK!  ("oiirl  of  I'ennsylvania  in  I8")<;,  illustrates  this  nile.  The  action  was 
in-ou'ilit  airainst  tiio  defendants  to  recover  a  pen.ilfy  imposed  by  a  statute  for 
paviiiji  out  baiik-iiotes  of  a  less  denomination  than  live  dollars.  The  notes  on 
which  the  action  was  based  were  passed  by  the  conductors  and  ticket-agents  of 
the  coiiipojiy,  in  their  cars  and  ticket-otlices,  in  the  cour.se  of  their  employment 
in  {;ivin<j  chanjjc  for  notes  of  a  larj::;er  denomination  received  by  them  in  the 
pavment  of  fare  on  the  road.  On  the  trial,  the  plaintiff  offered  to  j)rove  that  it 
was  the  open  and  notofious  (Mistoin  of  the  company's  conductors  and  a,<j;eiits  to 
l.ssue  and  jiay  oiK  the  |)roliihited  notes:  but  tills  evidence  was  rejected,  and  tiie 
defendant-  liad  a  verdict.  IJiit  the  Supreme  Court  held  that  the  evidence  sliould 
iiavt  iieeii  received,  and  remanded  the  case  for  a  new  trial.  "  The  question," 
.-aid  Bla("k,  J..  "  i;;  whether  tiie  railroad  company  is  liable  for  the  acts  of  the 
ticket-agents  and  conductors.  I  concur  fully  in  the  opinion  that  the  defendants 
are  not  liable  under  the  statute  unless  the  notes  were  paid  out  by  the  corpo- 
ratioi:.  The  corporation  did  i;(jt  pay  out  the  notes  unless  the  <»lllcers  immedi- 
ately cliosei;  by  the  .-'  ickhohlers  to  mainline  iIk-  affairs  of  the  company  eitluM' 
pa>>ed  them  away  with  their  own  hands,  or  else  authorized  their  siiboiMlinate 
airents  to  do  so.  \  servant  of  the  corporation  who  docs  an  act  forbidden  by 
l;i\v  is  respoiHJhle  for  it  in  ids  own  person,  and  the  corporation  is  not  i)resumed 
to  havi'  iiiven  him  any  authority  for  such  an  act.  It  is  very  clear  from  this  tliat 
where  a  conductor  pays  out  an  illegal  note  in  change  to  a  passenger,  the  penalty 
camittt  he  reccvered  from  the  company  without  proof  that  he  had  tlie  authority 
of  the  president,  directors,  or  tniasurc-,  or  some  of  tliein.  But  is  it  .iccessary 
that  this  proof  should  come  in  any  particidar  form?  Will  nothinii  do  but  a 
solemn  re-olutioii  of  tin;  directors,  in  full  meetini!;  assembliMl?  May  it  not  be 
iiif<'ri<  i!  frnin  circumst.'mci-;';'  .Surely  it  may.  In  the  present  case,  the  offer  was 
to  proM'  not  only  thai  a  larici'  number  of  small  notes  was  passed  upon  two 
person.s  in  th' course  of  ;i  short  time,  but  that  it.  was  the  open  and  notorious 
custom  of  (as  we  understand  it)  all  the  tiekct-aii'ents  and  conductors  employed 
by  the  <lefendants  to  issue  notes  of  a  similar  character.  Now,  what  is  the  natural 
presumption  fivnn  this?  .May  a  jury  infer  that  the  superior  oHicers  of  the  com- 
pany kne\v  of  the;  custom  and  approved  of  it?  Or  must  the  court,  as  a.  matter 
of  law,  determiiii',  w"hout  submitting:  it  to  a  jury,  that  all  the  conductors  and 
um'iits  were  hahitually  \  io.atimi  the  orders  of  their  masters  as  well  as  an  act  of 
til'  :.ii:i>-lature?  it  i-.  for  the  jury  to  say  what  is  the  natural  presumption  which 
arises  out  of  siu  ii  facts,  and  there  is  no  rule  of  policy  which  ri'(|uires  us  to 
make  any  le;^al  or  tlctiticnis  presumption  on  the  subject.  I  will  not  say  what 
verdict  ouLiht  to  be  i;iven  on  such  I'videiice,  but  I  am  very  clear  that  no  man  who 
is  not  a  juror  in  the  case  li;is  ;i  ri-Jihl  to  decide  that  the  president  and  directors 
were  iiruorant,  and  therefore  innocent,  of  a  custom  wliicli  was  open,  public,  and 
iiotdiluiis.  If  a  ((U'porat ion  cannot  be  held  nisiionsible  for  the  acts  of  a,ij;ents 
and  -ervants  without  proof  of  express  authority  beforehand,  or  distinct  ratill- 
latioi,  afterwards,  then  the  l.iw  upon  which  these  defendants  are  sued,  as  well 
lis  a  ;rreat  many  other  laws,  must  rtunain  a  dead  letter.  The  inana'^ers  of  a 
r.i'lroad  company  may  cause  any  statute  to  be  violated  by  their  subordinates 
•vithoiit  fiivinii'  ordeis  which  are  capable  of  direct  proof.     The  treasurer  take> 


'  1  (ir.iiii  (■ 


;!'»i. 


*■  Ml 


H 
m 


i 


■^■^ 


Iri  ^  - 

Ell      '!      '■ 


I  1:1 

I  iii: 


52 


ON    THE    KKQUSITKS    T(J    TIIKIR    VALIDITY. 


Interest,. 


from  the  ticket-auent  all  the  liold  and  silver  he  has  collected,  and  leaves  him 
small  bills  in  place  of  it;  the  aiic.it  would  understand  the  exact  meanius^of  sncii 
a  hint.  The  president  pa-i'^i.'s  alon;;  the  roa  1  and  sees  all  his  conductors  payin;^ 
out  the  forbidden  paper,  wUhout  censure  or  disapproval;  the  habit  is  as  sure 
to  be  continued  as  if  he  had  told  them  to  go  on.  If  these  bills  had  been  passed 
in  a  few  instances,  by  one  or  two  of  the  company's  servants,  it  would  not  be 
enoui^h.  But  it  seems  to  have  been  a  general  habit  for  a  long  time,  until  it 
became  a  notorious  thing.  The  managers  ought  to  be  presumed  to  know  at 
least  as  much  about  the  conduct  of  their  agents  as  was  known  to  anybody  else 
If  they  knew  of  this,  and  yet  suffered  it  to  go  on,  the  agents  could  not  l)Ut  know 
that  they  had  the  approbation  of  their  superiors;  and  if  they  had,  the  corpo- 
ration is  responsible." 

<}  22.  Customs  of  Merchants  to  charge  Interest.  —  Speaking  of  a  custom  of 
merchants  to  charge  interest  on  unliiiuidnted  accounts  after  a  certain  credit,  it 
was  said  by  Makcv,  J.,  in  a  New  York  case,  decided  in  1S;50:  "The  uniform 
custom  of  a  merchant  or  manufacturer  is  presumed  to  be  known  to  those  who 
are  in  the  habit  of  dealing  with  iiim,  and  in  their  dealings  are  supposed  to  act 
witli  reference  to  that  custom.'"  This  is  scarcely  a  correct  statement  of  tlic 
rule,  and  the  facts  in  the  case  did  not  call  for  this  opinion,  as  the  proof  showed 
notice  to  the  defendant  of  tlie  alleged  custom.-  In  Wnod  v.  Ifickok,''  decided  by 
the  same  court  a  year  earlier,  where  there  was  no  evidence  that  the  defendant 
knew  of  the  custom  of  the  plaintiff  to  charge  interest,  and  no  charge  of  interest 
had  ever  be<'n  made  in  any  of  the  accounts  rendered  the  defendant,  except  in 
the  last,  on  which  the  suit  was  brought,  it  was  held  that  the  custom  could 
not  bind  him.  Similarly,  in  a  case  in  the  same  year  and  hi  the  same  court, 
where  interest  on  charges  for  storage  and  vvharfaue  were  claimed  by  virtue  of  ;i 
usage,  the  court  refused  to  allow  it,  no  proof  being  given  that  the  defendant 
knew  of  the  usage.*  Yet  a  similar  usage  prevailed  three  years  later,  on  tlir 
ground  that  in  that  case  "it  was  the  uniform  custom  of  all  those  engaged  in  the 
same  business  to  charge  hiterest.  It  was  the  custom  of  the  plaintiff  to  charge 
it;  he  had  charged  it  in  former  accounts  against  the  defendant,  and  it  had  been 
paid  without  ol)jection,  before  the  contract  was  made  on  which  this  suit  was 
brought."  ^  This  last  extract  states  the  proper  test,  though  it  is,  of  course,  not 
absolutely  reciuired  that  the  party  sought  to  be  charged  should  have  paid  pre- 
vious demands  of  interest  in  order  to  raise  the  presunii)tion  that  he  has  notice 
of  the  custom  in  a  later  case.  But  it  is  rei|iiisite  that  some  evidence,  either  et 
its  extensive  notoriety  or  of  the  party's  dealings  having  brought  him  into  contaet 
with  the  custom,  should  be  added  to  the  bnre  proof  that  such  is  the  custom  'f 
the  particular  dealer,  or  of  the  trade  in  general.  This  statement  will  be  found 
to  be  sui)i)orted  by  the  best  considered  of  the  authorities  on  the  point." 


1  McAIliMter  r.  Heal),  4  Wond.  ts;',. 

-  See  ».  f.  on  appeal,  Ke;il)  v.  McAllister, 
8  VVeiid.  lOi). 

■■'  2  Wend.  501. 

■t  TrolUT  r.  Grant, -2  Wend.  418. 

fi  Moeeh  r.  Smith,"  Wend.  ;!ir). 

<'  See,  in  addition  to  the  ei>se>  cited  supra, 
Eslorly  v.  L'lile,    I!    N.    V.   .Wi;     Liolaid  v. 


(Jr.ivc.i,  3  Oainos,  SKi;  Fellows  r.  Mayor  '<t 
New  York,  17  Iliin,  •i4'.l;  Fisher  v.  Sargent,  in 
lush.  i'lO;  liayhurn  r.  Day, 'JT  I11.4(i;  Avers 
r.  Aliuealf,  it'llll.  HOT;  Barclay  v.  Kennedy,:! 
Wash.  C.  (;t.  8.")0;  Luring  c.  Gurney,  5  I'n'k. 
1,5;  Turner  r.  Dawson,  !)0  111.  Sir,  CtouiImhw 
V.  Parsons,  ;!(>  Vt.  47;  Langdon  ?•.  Town  of 
Custleton,  'M  M.-iSb;  Uirchard  u.  Kuaii|i,:!l 


CUSTOMS    OF    BANKS. 


03 


Knowledjxe  —  When  Esscnrinl 


^  2;'..  Customs  of  Banka. —  In  a  few  cases  it  is  said  tliat  in  onler  t(i  affect  a 
person  witli  a  usaue  «il  a  particular  bank  it  is  Dt'cessary  to  sliow  that  lie  was 
c(iiiv<rsaiit  witli  it.'  But  tlie>e  (leeisions  are  not  law.  In  Mills  v.  Jiunk  of  the 
United  S'atf-><,-  it  was  expressly  ruled  by  liie  Sui)renie  Court,  followinji  limner 
V.  Bank  i>f  Columbia,'  that  where  a  note  is  made  for  the  i)urpose  of  being 
iK'L'oliated  at  a  bank  whose  custom  is  to  demand  payment  and  irive  notice  on  tlie 
fourth  (lay  of  ixrace,  that  custom  binds  the  parties.  And  it  was  said:  "  In  the 
present  case,  the  court  is  called  upon  to  take  a  step  further;  and,  upon  the  prin- 
ciples and  reasoninu,'  of  the  former  case,  it  has  come  to  the  conclnsidii  tliai  when 
u  note  is  made  pasable  or  nej;otiable  at  a  hank  wliose  invariable  usaiie  it  is  to 
demand  payment  and  ;iive  notice  on  the  fourth  day  of  urace,  the  parties  ai'e 
bound  by  that  usa^e,  wh<>ther  they  have  a  personal  )<nnwle(l.L;e  of  it  or  not. 
In  the  case  of  such  a  note,  the  parties  are  presumed,  by  implication,  to  a^ree  to 
be  Ltoverned  by  the  usa^e  of  the  bank  at  whiiiii  they  have  chosen  to  make  the 
security  itself  neiiotiaiile."  Many  other  cases  lay  down  the  rule  that  a  nsaj^e  of  a 
bank  is  bindiui:  on  persons  dcalinj:  with  it,  whether  known  to  them  or  not.*  Al' 
that  is  rei|uire(l  is,  that  it  shall  have  been  so  lonii  established  tliat  its  cnstomc^rs 
may  well  be  presumed  to  have  known  of  it.  Less  than  this,  however,  will  not 
do;  and  so,  '.vhere  a  certain  practice  had  been  adopted  by  a  l)ank  l)nt  two  years^ 
and  in  that  time  only  four  instances  under  it  had  occurred,  it  was  held,  in  tlie 
Supreme  (^ourt  of  the  United  Slates,  that  the  re(iuisite  notoriety  was  wantin.i^.^ 

§  24.  Customs  of  particular  Trades  and  Professions. —  If  tlicre  is  a  general 
usaire  applicable  to  a  jiarticular  profession  or  busintss,  parties  employin.i;  an 
individual  in  tluit  profession  are  supposed  to  deal  with  liim  accordiiiii  to  that 
iisafre/'  "All  trailes  have  their  usaires,  and  when  a  contract  is  made  witli  a 
man  about  the  business  of  his  craft,  it  is  framed  on  the  basis  of  its  usaite,  which 
becomes  a  part  of  it,  except  when  Its  place  is  occupied  by  particular  stipu- 
lations." ' 

It  is  lu'ld  in  some  cases  that  where  services  are  rendered,  and  a  uniform  nsaire 
is  shown  in  reuard  to  sue  I  siTvices,  it  will  b(!  presumed  that  they  are  rendered 
in  accordance  with  tlie  iisa;.ie.  In  the  followiii'j;  instances,  the  usau;e  bi'ing 
proved,  it  was  held  not  material  that  the  proof  did  not  show,  in  addition,  that 
the  jiarty  to  be  affected  by  it  had  express  notice  of  it:  In  an  iiction  by  S.,  a 
veterinary  surgeon,  airaiiist  0.,  for  attendance  and  inediciiie  furnished  to  (".'s 
horse,  a  custom  to  jtay  veterinary  surij;eoiis  for  attend;ince  as  well  as  medicines; " 
in  an  action  by  a  dry -goods  salesman  against  liis  employer  for  a  wron;L;ful  dis- 


I 


m 


B)e 


found 


M;ivor 


;;l\-!{i'li 


t,l'' 


4t>; 


Avi'i"'^ 


ten  111' 


ilv,;i 


5    I'K'l'- 

1  Uoi'il'iiiw 

Town  ii( 

iKuiiiil',:" 


Vt.  CT'J;  Wiiod  r.  Smith, '.':;  \  I.  TiiC;  l)c  IFevlel 
V.  Sii|i|ili;,  1:!  l'|i|ier  (  aiKula  (  h.  I'llS ;  1 1  Uiiper 
Caiiaila  Cli.lJI. 


'  I'ii'ive  r.  Ilnller,  1-t  Mui^s.  303. 
-  11  WlK'ut.4;!l. 


s  Adams  r.  OttiMbiick,  15  Hdw.  n:!;). 

«  sewell  c.  Corip,  1  Ciir.  &  1'.  i'lfj;  (iiven 
y.  Clianoii,  l.T  .Mel.  Mli;  l.jDn  r.  (ieorge,  44 
iMd. -jy;");  VauKhn  r.  Gaidiier,  7  H.  .Mi>n.  .T.'f.; 
VVall«  v.  15aile>  ,  4!»  N.  V.  4(i4  ;  Kord  i:  Terrell, 
0<;rav,40l;  l.owo  r.  J.ulini.iii,  1.1  Ohm  .si.  IT'.I: 


'/'(|.s^(•hil|l.  HI. 

<  Dnn-lic-^tcr,  uic,  Bank  i'.  Xew  Kn.u'laiid        HarlDU  r.  McKelwav,  ■-'•2  N.  ,J.  L.  Ki.l ;  Carter 


Hank,  1  Cusli.  177;  Itank  cif  \\  a-hinf,'|i)n  c. 
Triiilctt,  1  I'd. -ri;  Vuatiui  r.  Hank  of  Ale.v- 
iuulna,  .')  Ciancli,  111;  ISank  of  t'oluinhia  c. 
t'il/hii),'M,  1  liar.*  U.  'J;!.!;  smith  v.  Whit- 
ing, 1'.'  .Mass.  0. 


r.  I'liiladelphia  Coal  C 


I'a.  St.  I'.so. 


'  ritisbui),'  V.  <»'Ni!ili,  1  I'a.  Si.  :u:i. 
"  iSewell  c.  Corp,  1  Car.  A:  i*.  ■A'.H. 


54 


O.V    THE    RKQUIS1TK8    lO    THEIR    VALIDITY. 


1  ( 


( 


!■■■  1 


i\  r 


S  I 


Customs  of  Partiiiiliir  Trades. 


missal,  a  custom  among  dry-goods  jol)l)ers  that  wliiiii  a  cltTk  or  salcsiiiiiii  hrgms 
a  season  without  a  special  contract,  lie  cannot  be  dismissed  until  the  end  of  it;  ' 
in  an  action  against  a  glass-ware  manufacturer  l)y  an  agent,  for  commissions,  a 
usage  among  manufacturers  of  glass-ware  to  allow  tlieir  local  agents  commis- 
sions both  upon  goods  ordered  directiy  through  sucli  agents  and  upon  goods 
ordered  by  buyers  living  in  the  territory  of  the  agent  directly  through  the  manu- 
facturer.'^ 

The  customs  and  regulations  of  employers  reiiniring  notice  of  intention  to 
leave  the  master's  service  must,  in  order  to  affci!t  tin;  servant,  be  shown  to  have 
been  known  by  the  latter  at  the  time  of  entering  the  service.  On  this  ground 
the  usage  set  uf)  in  tlie  leadiiig  case  of  Ntecens  v.  Rccvi's-^  was  rejected.  The 
usage  was  that  no  person  employed  in  a  woollen-factory  should  leave  without 
giving  a  fortnight's  notice  of  his  intention,  and  the  defendant,  a  weaver,  did 
not  know  of  the  usage.  In  a  Scotch  case,*  it  was  ruled  that  if  a  servant  lias 
been  hired  from  Whitsunday  to  Martinmas,  and  is  dismissed  at  Martinmas  with- 
out warning,  it  is  not  relevant  to  her  claim  for  wages  during  tbo  subsequent 
term  that  i\v  local  usage  no  warning  is  given,  unless  the  usage  be  notorious. 
Notice  of  the  employer's  regulations  is  not  sulliciently  brought  home  to  the 
employee  by  merely  placing  in  his  hands  a  i)rinted  copy  of  such  regulations, 
unless  it  is  shown  that  the  employee  can  read.  The  law  will  not  presume  that 
he  can  read,  but  imposes  the  burden  of  proving  that  fact  on  the  party  to  be 
benefited.*  If  the  servant  does  not  know  of  the  usage,  and  is  not  informed  of 
it  when  he  begins  work,  the  fact  that  lie  is  afterwards  informed  of  it,  and  con- 
tinues to  work  witliout  objection,  does  not  conclusively  show  such  assent, 
though  it  may  be  evidence  thereof." 

In  m;iuy  cases  no  distinction  is  made  betvveen  a  local  and  a  general  custom,  or 
a  cnsloin  established  by  time  and  a  custom  of  but  short  duration,  in  the  par- 
ticular trade.  Doubtless  the  cases  did  not  call  for  this.  But  the  rule  is  best 
stated  with  the  (pialittcatiou  that  it  must  liave  been  so  well  established  and  noto- 
rious as  to  properly  raise  a  presumption  that  it  must  have  been,  or  ought  to  have 
been,  known  to  the  parties  sought  to  be  bound  by  it."  Where  both  parties  are 
engaged  in  the  same  particular  business,  and  the  usage  relates  to  the  techni- 
calities of  their  calling,  it  will  ill  become  one  of  them  to  profess  ignorance  of 
it,  and  sucli  a  plea  would  tlnd  little  favor  with  the  courts.  So,  too,  where  the 
one  to  be  charged  with  the  usage,  though  not  of  that  calling,  yet  has  dealings 
with  it,  the  i)resumpti<)n  would  still  be  violent  that  he  knew  of  the  usage,  pro- 
vided only  it  had  been  in  existence  for  a  sulTlcient  length  of  time  for  him  to  have 
gained  knowledge  of  it.  If  a  party  closes  his  eyes  and  shuts  his  ears  to  what  is 
imiversally  known  in  tii.  community  by  others,  he  will  not  be  allowed  to  shelter 
himself  under  a  plea  of  ignorance.* 


>  Given  j'.Ch.inon,  \r,  Md.  502. 

-  Lyon  t'.  (icoipte,  It  Md.  i'Xt. 

'  i)  IMck.  lits,  ante,  \t.  7. 

^  Morrison  v.  AllMrdyce,  ■-•  Scotch  Soss. 
("U8.  :(S7:  Marlian  r.  Klliott,  llnmu, ;;»:(. 

■•  Ilrudley  v.  Salmon  Kails  Man.  Co.,  30  \. 
II.  487.  And  sec  Harmon  l\  Salmon  V:\Un 
Man.  Co.,  :ir.  Me.  417. 


>'•  (Collins  c.  New  KnuhiiKi  In>;i  Co.,  11,') 
Mass.  iX 

•   I'lynn  r.  Mnrphy, '2  K.  I).  Snutli,;i78. 

-  Lower.  Lelinian,  15  Ohio  Si.  I7!»;  WmM* 
r.  I5ailey,4'.l  \.  V.  4r4  ;  (^nccn  /'.  Inliabitanis, 
5  Q.  I*..  :!0:!;  Wilson  v.  Uauman,  SO  111.  I'M. 


^ 


CUSTOMS    MUST    BE    KNOWN. 


i)i) 


Insurer  and  Insured. 


).,  ur) 

78. 
litfiMls, 

\<.n. 


m 

fit, 


§  2.').  Particular  Customs  not  known  to  Insured  inadmissible.  — A  custom 
of  ;i  |>arti(iil.ir  in>iir(!r  wliicli  is  unknown  to  tlie  insuivil  is  noi,  admissible  to 
affect  his  rinhts.'  In  an  action  against  the  Dorchester  Fire  Company,  tlie  evi- 
dence of  its  ajient  tliat  it  was  its  custom  to  charge  extra  premiums  on  unoccupied 
dwelling-liousea;-  in  an  action  against  the  ..Etna  Life  Company,  evidence  of  a 
usage  on  its  part  to  rei|nire,  as  proof  of  deatli,  a  certificate  from  the  deceased's 
attending  pliysician;'  in  an  action  again^it  the  (tlobe  Fire  Company,  evidence  of  a 
usage  at  New  York,  in  case  of  the  occurrence  of  any  cinunistance  by  the  act  of  the 
insured  .after  affe(!ting  the  insurance,  wiiereby  the  risk  is  in  reased,  for  tlu^  insured 
til  irive  n()ti(!e  thereof  to  tlie  msurer,  who  is  tlien  to  have  the  option  of  continuing 
ttie  policy  or  of  annulling  it:  '  in  an  action  against  the;  VVashiti'^ton  Fire  (Company, 
evid(!nce  of  a  usage  in  tlut  otlir-e  of  the  company  that  the  term  "  carpenters,"  in 
a  policy  referred  to  t!ie  eiiiployineut  and  work  of  carpenters  in  erecting  or 
addiiiii  to  buildiu'zs  insured:  '  in  an  action  against  the  Proti'cti  ui  Fire  Compiiny, 
evidence  of  a  local  usage  among  insurers  in  the  county  wliere  the  property 
diistroyed  was  situated,  to  reject  an  application  for  insuiMuce  on  a  building 
wiiich  had  previously  been  tired  by  ;in  incendiary,  or  to  charge  a  higher  premium 
thereon: "  in  an  action  against  the  Illinois  Yiva  Company,  evidence  of  a  usage  in 
their  oltice  to  recpiire  notice  of  additional  insurance  to  be  given  I)y  tin;  insured;' 
in  an  action  a'j;ainst  tlie  (Jermania  Life  Company,  a  custom  of  tlie  company  not 
to  deliver  or  si'ud  policies  to  agents  for  delivery  except  upon  the  condition  that 
the  person  whose  life  was  insured  was  in  good  health;  ■*  in  an  action  against  tlie 
New  England  Fire  Coiiiptmy,  the  testimony  of  the  president  as  to  the  practice 
of  tlie  company  in  reipiirins:  applications  for  consent  to  additional  insurance  to 
be  ill  writing;"  in  an  action  against  the  Hil)ernia  Fire  Company,  evidence  that 
the  words  "standing  detached,"  in  a  policy,  meant,  "among  insurance  men 
geiieraily,"  that  the  subject  of  insurance  should  be  at  least  twenty-flve  feet 
from  external  exposure  ; '"  in  an  action  against  the  .\merican  Marine  Company,  a 
u.sMLie  of  the  coi>ip;iny  to  require  a  survey  of  the  goods  damaged  by  the  [lort- 
wardeiis,  a.s  a  preliminary  proof  of  the  lo.ss;  "  in  an  action  again,st  the  Niagara 


>  Carter  r.  I'.oehm,  :i  Burr.  V.m. 

-  I. lice  r.  Dorctiestor  Ills.  Co.,  10,")  Mass.  .'^99. 

»  Taylorc.  .Ktiia  Life  liis.  Co.,  1:!  (;r;iy,4:U. 

*  Slcl)l)ins  r.  (il()l)i!  Ins.  Co.,  i  Hull,  (;:W. 

■'  Washington  Fire  Ins.  CV).  c.  Davison,  30 
Mil.  ill. 

'■'  Hartford  I'roteclioii  Ins.  Co.  v.  Hariner, 
2  0liii.  St.  Vy>. 

Illinois  Mutual  Ins.  Co.  r.  O'Xeile,  13 
111.  s;i  In  iliis  case  the  Supreme  Coui't  of 
Illin,)is  cxi'luded  evi(h'nc,e  of  the  iisaj^e 
(itf(  Tfii.  on  the  ground  that  it  would  modify 
orcontradiet  the  contract  between  the  par- 
ties, Catoa,  J.,  saying:  "The  usage  of  the 
fonipany  in  regard  to  additional  insurance 
upon  personal  properly  *  *  *  was  prop- 
erly excluded.  \o  usage  of  the  company, 
nor  even  the  ex|iress  agreement  of  the 
panics,  whether  made  previous  to  or  at  ilie 
time  of  the  execution  of  the  policy,  can  be 
admitted  to  explain,  modify,  or  control  the 


written  contract."  IJut  there  was  nothing  in 
the  contract  in  question  providing  that  such 
notice  should  not  be  given.  Il.id  the  usage 
been  a  general  one,  and  known  and  under- 
stood by  the  insured  us  a  part  of  his  con- 
tr.icl,  though  not  incorporated  therein,  it 
would  liave  been  ailmissible  in  accord.-inoe 
with  the  rule  that  the  usages  of  tradi!  are 
part  of  the  contract,  whether  expressed  in  it 
or  not,  provided  they  are  not  excluded  or  are 
not  illegal.  The  usage  in  question  was  purely 
a  local  one,  and  was  not  shown  to  have  been 
known  to  the  pl;iintitf.  It  was,  tlierefore, 
rightly  rejecjted,  but  not  for  the  reasons 
given  by  the  court. 

^  .Schwartz  r.  Germanla  Life  Ins.  Co.,  18 
Minn.  4ts. 

'J  Goodall  V.  Xew  Kngland  Fire  Ins.  ro., 
25  X.  H.  l(i». 
1"  Hill  V.  Hibernia  Ins.  Co.,  10  Hun,  2(i. 

'■  Kankin  v.  .\merican  Ins.  Co.,  I  Hiill,(>19. 


.:.!-' 


I 


^^  -li 


'--'. 

M 

!'■ 

:|| 

1:,            -^. 

•1 

I 


•W 


n  It 


.')(i 


ON    THK    KliyUlSITKs;     TO    TIIKIIi    VALIDITY. 


Knowledire —  VVlicii  Kc'(|iiisitc. 


Fire  (;<)iii|).iiiy,'  a  iisiiiit-  of  thi;  company  as  t,n  the  iiiodo  of  ailjiistiiri  losses  — 
all  Uii'st;  liavc  l)oi'ii  liold  inailinissible  iu  evidence  for  tliu  purpose  of  aifecliiiy 
the  rights  of  tiie  insured. 


§  2(i.  And  so  of  particular  Customs  not  known  to  Insurer.  —  For  like 
reasons,  vvliere  a  llre-poliey  on  a  factory  was  constrin'd  to  cn^anc;  tliat  a  watcli- 
nian  slK)uld  l)i'  kcjit  in  the  bnildinj^  tlu'ou^h  tlie  lioi  -s  of  (^very  niijjlit  in  tlie 
week,  a  usajit'  of  tlie  factory  for  the  watclinuin  to  h'ave  at  twelve  o'clock  on 
iSaturday  niiilit,  and  not  to  return  until  twelve  o'clock  on  Sunday  ni^lit,  was  held 
not  to  affect  tli(**l)reach.-  So,  wiu're  a  marine  policy  issued  at  Ilockland,  Maine, 
contained  a  warriiity  that  the  vessel  >hould  not  enter  tiie  river  and  (Julf  of  St. 
Lawrence  between  September  1st  and  .May  1st,  and  she  was  lost  in  the  Strait  of 
Northumberland,  placed  by  jieo<;;rapiiers  a.s  within  tlie  ,;?ulf,  in  I)(!cembor,  a 
usaue  at  Boston  not  to  rejrard  the  strait  as  witiiin  the  jrulf  was  not  admitted. 
"A  usai^e,"  said  the  court,  "may  be  local  or  ijteneral.  IJut  if  local,  the  con- 
tracting parties  are  not  bound  l)y  the  usages  of  other  places,  unless  they  arc 
referred  to  or  made  part  of  the  contract.  It  is  immaterial  what  may  be  tiie 
usage  or  the  construction  given  to  i)articiilar  words  at  IJoslon;  they  will  i\ot 
affect  a  contract  at  Rockland,  unless  a  similar  usage  or  the  same  construction 
to  the  same  words  is  shown  to  exist  there  if  the  contract  is  there  made.  The 
usage  must  be  dclinilc  and  brought  home  to  the  knowleolge  of  the  parties  to  be 
affected,  or  so  general  und  well  establisluid  that  there  nuist  be  ground  to  pre- 
sume the  parties  had  knowledge  of  it,  or  that  they  were  bound  to  be  informed 
of  it."^ 


§  27.  Knowledge  of  Custom  —  When  not  presumed.  —  As  we  have  seen,  if 
A.  makes  a  contract  with  B.  in  any  particular  tratle  or  business,  both  \.  and  B. 
are  presumed  to  contract  with  reference  to  any  customs  of  that  trade  wliicli 
may  affect  their  rights  inter. -le.  \  custom  cannot  affect  parties  between  whom 
there  is  no  privity  of  contract.  In  Dnnn  v.  C%  «/  London  Brewcnj  Compumj,' 
a  tavern-keeper  deposited  the  lease  of  his  house  with  the  defendants,  brewers, 
witli  a  memorandum  stating  that  the  deposit  was  to  secure  payment  of  the  sum 
of  £200,  as  well  as  any  other  sums  in  which  the  depositor  might  becomi;  indel)tc(l 
to  the  brewers  on  any  account  not  exceeding  £500.  The  brewers  subsequently 
made  a  further  advance  of  £100.  Four  days  thereafter  the  tavern-keeper  gave 
t'.e  plaintiffs,  who  were  distillers,  a  memorandum  declaring  that  the  documents 
dcjjosited  with  tlie  brewers  should,  subject  to  the  I)rewers'  charge,  be  a  security 
to  the  distillers  for  tlie  sum  of  £120  then  due  them,  and  all  other  sums  thai 
might  thereafter  become  due  them.  Notice  of  this  second  equitable  mortgaize 
was  on  tlie  same  day  given  by  the  distillers  to  the  brewers,  and  afterwards  the 
tavern-keeper  became  indebted  to  the  brewers  in  a  further  sum  of  money  for 
beer  supplied  to  him.  On  the  trial  of  an  action  to  determine  the  {)riorities,  the 
brewers  claimed  to  be  entitleil,  by  virtue  of  a  custom  in  the  trade  between 
brewers  and  tavern-keepers,  to  add  the  last  sura  due  them  to  tlie  amount  secured 


'  Williiiins  r.  N'iiii;-.ivii    Ins.  Ck.,  r>0  Idwa,  ■'  C"ol)l)  r.  I.iiin'  Work,  etc.,  Ins.  Co.,  ."iS  Mr. 

rm.  s'.'t). 

-  (ileiuiale  .Man.  Uo.  f.  l'r..ieclioii  1m~.  <.'<).,  ^  L.    I{.   S    i:().    l.^i,").     And    see    .Mcn/ic- t). 

2U;(>un.  19.  Lightfoot,  L.  U.  11  I-Jij.  4.'")'.i. 


"% 


CUSTOMH    MUST    15K    KNOWN. 


57 


Illustrations. 


bv  tlio  -l.M'o-it  of  the  l.MMs  in  priority  to  the  (listillers'  cIku-c  But  Jamks, 
V  (•  rejccU'd  t!.r  .•M.tom,  saym-:  "It  is  ditncult  to  aiM'ty  suHi  :i  niMom  to 
pJrs.ms  who  arc  I'lit.  rin-  into  no  .•ontract  between  tlieni>elves—  who  liav  only 
this  conn.'el ion-,  tliat  they  are  suppliers  of  a  coniiMon  cuMonier.  We  l<now  how 
pLTS(His  on  ilie  St  )ek  Kxc'han'_'o,  dealiirj;  with  one  auoilier,  are  affe-'le.l  l)y  the  hx 
loci.  Tliere  i>  Mi|>pos<'.l  to  be  introdueed  into  the  contract  tlie  nsa-,'e  and  prac- 
tice of  the  Stoclv  Kxchanse,  which  is  known  to  both  of  the  contracting'  parties, 
and  that  i.-  taken  as  part  of  tlio  contract.  One  can  nnder-tand  how,  when  a 
landlord  lets  his  l.iiid  to  a  tenant,  the  custom  of  the  conntry  as  to  crops  and 
allowances  to  ont->>inL'  tenants  may  i)e  introdnei'd  as  part  of  tiie  contract 
between  landlord  and  tenant;  but  it  is  very  diflicnlt  to  see  h..w  anythin--  of  the 
kind  can  l)e  applied  to  persons  who  have  no  i)rivity  of  coulraet,  who  do  not 
conlraet  at  all  with  each  other,  but  who  are  pcr-on-;  who  iiave  only  the  mi-for- 
tune, or  the  iiood  fortune,  to  be  creditors  of  the  same  person.  It  seems  to  me 
very  much  as  if  a  custom  were  alle;ied  in  these  terms:  tiiat  if  a  citizen  of  Lon- 
don and  a  bur^'ess  of  Sonthwark  were  both  creditors  of  a  trader,  the  citi/.en  of 
London  mi-ht  say,  'There  is  a  custom  by  which  my  debt  nnist  be  pai<l  tlrst,  in 
priority  to  yours.'  " 

The  custom  of  others  to  do  certain  acts  cannot  support  a  similar  act  d(me  by 
a  party  who  was  himself  i;:iiorant  of  any  such  custom,  and  whose  actions,  there- 
fore, could  not  have  influenced  his  conduct  in  tlu^  least.  Thus,  in  Kiniw  v.  /•'-,/•(<,' 
an  action  was  brouirht  to  recover  the  value  of  a  i;lieck  for  810,000  in  tiold,  wiiich 
the  plaintiffs  aile;j:cd  was  delivered  by  their  clerk  to  the  defendants'  clerk.  The 
defendants  denied  its  receipt.  The  plaintiffs'  clerk  testified  that  he  delivered 
the  check  in  (luestion,  that  lie  took  no  receipt  for  it,  and  did  not  uet  the  defend- 
ants'check  for  currency  for  the  amount  of  the  clieck  he  had  delivered.  Ujion 
the  (|Uestion  of  the  delivery  or  non-delivery  of  the  ^old  check,  tiie  plaint itfs 
were  permitted  to  prove  that  other  persons  who  were  late  in  their  delivery  of 
checks  payable  in  i?old  were  sometimes  accustomed  to  leave  tlu;  checks,  an<l 
take  no  cheeks  for  currency  in  i>ayment  nntil  afterwards.  The  clerk,  it  api)eared, 
had  no  knowle<lij;e  of  such  a  custom.  The  admission  of  this  evidence  was  held 
to  be  error.  "  Tlie  witness,"  said  the  Supreme  Court,  "knew  of  no  such 
custom,  had  delivered  no  gold  check  bc^fore  this  one,  as  he  could  remeinl>er,  and 
did  not  pretend  that  this  custom  was  the  reason  of  his  lakiiiu;  no  cheek  for  the 
one  he  delivered.  The  (piestion  was.  Did  he  deliver  this  check  in  the  manner 
and  at  the  time  he  tcstitied  he  did?  It  was  not  lej^itimate  or  proper  eviilence 
upon  this  issue  that  persons  about  whose  deliverances  of  stock  no  (piestion  is 
made  were  sonujtimes  accustomed  to  (hdiver  checks  and  received  neither  evi- 
deiiee  nor  payment,  when  such  custom  was  neither  known  to  the  witness  nor 
state  I  Ijy  him  as  a  reason  why  he  omitted  to  take  either  receipt  or  payment." 

A  nsaire  of  a  bank  cannot  bind  a  party  who  has  no  occasion  to  believe  that  he 
will  be  brou'iht  within  its  operation,  or  does  not  intend  to  be.  Therefore,  where 
an  indorsed  check  was  drawn  on  a  bank  at  A.,  was  cashed  at  a  bank  at  S.,  and 
forwarded  thence  to  the  bank  at  \.  for  collection,  any  customs  between  the  bank 
at  S.  and  the  bank  at  A.  were  considered  irrelevant,  since  there  was  "  no  pretence 
tliat  this  ciieck  was  drawn  or  indorsed  witli  a  view  to  its  being  negotiated  or 


if 


a*.il 


■.!lfft 


I        ^^t 


»       ■k\ 


iM 


m 


'  m 


»  52  Barb.  194, 


"% 


5» 


ON    THE    KEyUISlTKS   TO   TIIKIli    VALIMMY. 


Kiunvlmlge  —  How  Requisite. 


iM! 


1  "'; 


caHhiid  at  tiic  banlt  at  S.,  or  that  there  was  any  nsaj;*!  from  which  the  dcfeiuhint 
had  reason  to  (suppose  it  vvoiihl  he  coMected  throiij:li  that  hank"'  Lime  Itock 
Bank  v.  Ili'inett'^  i.«  a  still  better  example  of  tliis  rnie.  Two  note-*,  oni!  made 
payable  at  the  Lime  Koek  Bank  and  the  other  not  so  payable,  were  indorsed  by  the 
defendant,  who  lived  in  the  same  town,  and  notices  of  dishonor  were  ent  to  hini 
by  post,  arcordina;  to  the  custom  tjf  the  bank.  TIk;  court  held  that  as  to  the 
note  (layable  at  the  bank  the  notice  was  ^ood,  and  the  defendant  was  bound; 
but  as  to  the  other,  he  was  not  bound.  "  Where  the  parties  to  a  note  or  bill  of 
exchans?e  live  in  the  same  town,"  said  Aim-lkion,  ('.  J.,  "a  demand  upon  the 
maker  and  notice  throu^^h  the  post-ollice  are  not  sulllcient  to  charge  the 
indorser.  *  *  •  The  hiri^er  note  in  suit  was  payable  at  and  transferred 
by  the  defendant  to  the  bank.  By  indor-injj;  a  note  thus  payai)le  he  may 
well  be  presumed,  knowinsj;  the  usajjes  oi  the  bank,  to  have  asst'uted  to, 
and  to  have  agreed  to  be  bound  by  them.  *  ♦  *  jju^;  j^e  note  for  $300 
was  not  made  payable  at  any  bank.  There  was  no  proof  that  the  defendant 
knew  that  it  would,  or  assented  that  it  should  be  discounted  by  the  plaintiffs. 
He  is  not  the  last  indorser.  Nor  is  he,  by  the  mere  fact  of  a  prior  indorsement, 
to  be  presumed  to  have  waived,  as  to  this  note,  the  usual  notice  of  demand  and 
non-payment.  Notice  through  the  post-office  would  not  be  bindinuj  upon  him." 
So,  it  cannot  be  presumed  that  a  person  has  knowledge  of  the  customs  of  banks 
at  places  distant  from  that  in  which  he  himstdf  lives  and  does  business.^  And 
though  dealers  with  a  "  clearini;-house  "  will  be  l)oMiid  by  its  usaijes,  they  cannot 
bind  persons  not  parties  to  tlie  association.*  It  was  held  in  Kirrhner  v.  Venus^ 
that  persons  livin>^  in  Sydney,  Australia,  would  not  be  presumed  to  be  acquainted 
with  a  mercantile  usajje  existing  at  Liverpool. 

§  28.  Person  ignorant  of  a  Usage  cannot  take  Advantage  of  it.  — A  usage 
is  ecpuilly  inadmissible  if  it  can  be  shown  to  have  been  uid<nown,  at  the  time  of 
the  contract,  to  the  party  setting  it  up  and  seeking  its  benehts,  for  in  sucli  a  case 
there  would  be  no  presumption  that  the  contract  was  made  with  reference  to  it.* 

§  2!).  Proof  of  Knowledge  by  a  single  Instance.  —  Though  a  single  instance 
of  a  certain  practice  Avill  not  prove  a  usage,  yet  it  is  suflicient  to  l)ring  home 
notice  of  such  a  usage,  already  establislied,  to  a  person  sought  to  be  bound 
by  it. 

§  30.  A  Custom  must  be  Moral.  — A  custom  must  be  moral;  that  is  to  say, 
it  must  not  be  of  doubtful  morality.'*  There  was  a  custom  which  prevailed  in 
Scotland  in  olden  times  that  gave  to  the  lord  of  the  fee  the  right  of  concubinage 
with  his  tenants'  wives  on  their  wedding-nights.*  Though  it  is  denied  that  this 
custom  ever  flourished  in  England,'"  there  is  no  doubt  that  such  a  right  was  never 


'  Mohawk  IJank  v.  Broderick,  13  Went!. 
l.W. 

-  52  Me.  .11. 

3  Morse  on  Hanks,  4;}8;  Bank  of  Washing- 
ton r.  Ti'iplett,  1  Pet.  25. 

*  Overman  t'.  Holjokun  Oity  Itank,  30  N. 
J.  L.  Gl. 

'"  12  Moo.  P.  C.  C.  361. 


''  Nonoiiiok  Silk  Co.  i\  Fair,  112  Mass.  1554. 
And  see  Fowler  f.  I'ii\kering,  119  Mass.  Sn. 

'  Dorchester,  etc  ,  I'.Jink  v.  \e\v  Kiiglatid 
Bank,  1  Cush.  177. 

"  Wellnian  v.  Nutting, :!  Mass.  434. 

»  2  r.la.  Comni.,  cha)).  0,  p.  83. 

">  Gerald's  Case,  23  How.  St.  Tr.  1407,  note. 


M 


1 


A    CUSTOM    MU«T    BK    MOUAL. 


.■)1» 


The  Custom  of   "  liiiiullin;;. 


:ts:l 


chiimocl  in  flic  courts;  for,  liiul  it  bt'cii,  if  would  certainly  have  boeii  hcM  biul  on 
accoiiiit  of  its  iminiiiilit.v.  In  AmiTicii  we  tiiid  a  tnicf  in  the  reports  of  a  custom 
«'(|ii;dly  curious,  tliouiili  less  sliocliiuL;,  whicli  jirew  up  in  the  austere  society  of 
e.iily  New  Vorl<.  In  '<  Kniclicrbockcr's  History  of  New  York"  we  have  the 
fdlUtwiui;  cxplanali'ii  of  tin-  causes  whicli  prevented  a  decrease  of  population  in 
spite  of  the  persecutions,  and  burnings,  and  iiany:in^s  of  <.iuakers  and  witches: 
♦'  IJut,  Motwithslandiuii  the  fervent  zeal  with  whicli  this  holy  war  was  prose- 
(  utcd  aiiain-t  ilie  wlioic  race  of  uiil)ciicvers,  we  do  not  llnd  that  the  population 
ol  this  iii'w  colouy  was  in  anywise  hindered  therel)y ;  on  the  contrary,  they  multi- 
plied to  a  decree  wliicli  would  be  incredible  to  any  man  unac<ptainled  with  the 
nrirvillnii>  fcctiiuliiy  of  this  irrowinii  country.  This  ama/.in;?  Increase  may, 
indeed,  be  partly  ascribed  to  a  siniiular  custom  prevalent  anions  them,  commonly 
known  liy  tlic  iiaun'  of  '  buudlinu,' a  superstitious  rite  observed  by  the  young 
pMppli-  of  botli  Ncxfs,  with  which  they  usually  terminated  their  festivities,  and 
w  lich  wmn  keiit  up  witli  reli-jciiius  .strictness  by  tlie  more  l)isoted  part  of  the 
CMiinnmiity.  Tliis  ce  iiimny  was  likewise,  in  those  primitive  times,  considered 
as  an  indispcnsal)  >  prrliiiiinary  to  matrimony,  —  their  courtships  commencinj;; 
Will  re  niir>  usually  liulsb,  —  by  wiiicii  means  tlieyaiMiuircd  that  intimate  acquaint- 
ance witii  each  other's  jjood  (lualities  before  marriage  which  has  been  pronounced 
liy  pliil()S(i|)liers  the  sun;  basis  of  a  happy  union.  Tlius  early  did  tliis  cunning 
and  iiiL^iiious  people  display  a  shrewdness  of  making  a  bargain  which  has  ever 
since  disiiiiiiuished  them,  and  a  .strict  adherence  to  the  good  old  vulgar  maxim 
about  'buying  a  pig  in  a  poke'  To  this  saga(;ious  custom,  therefore,  do  I 
cliietly  at*ril)ute  tin;  unparalleled  increase  of  the  Vanokie  or  Yankee  race;  for  it 
is  a  certain  fact,  well  authenticated  t)y  court  records  and  parish  registers,  that 
wherever  the  practice  of  '  bundling'  prevailed,  ther.'  was  an  amazing  number  of 
sturdy  brats  annually  born  unto  the  State  without  the  li"ense  of  the  law  or  the 
beiietlt  of  clergy.  Ncitlier  did  the  irregularity  of  their  birth  operate  in  the  least 
to  their  disparagement.  On  the  contrary,  they  grew  up  a  long-sided,  ravF-boned, 
hardy  race  of  whoreson  whalers,  wood-cutters,  fishermen,  and  peddlers,  and 
straiipiug  corn-fed  weiiclies,  who,  by  their  united  efforts,  tended  marvellously 
towards  jieopling  those  notable  tracts  of  country  called  Nantucket,  Piscatanay, 
and  Caiie  Cod." 

Sianar  w  NUtfcrland,^  which  arose  in  New  York  in  1804,  scorns  to  have  been 
the  first  case  in  which  the  custom  of  "  bundling  "  engaged  the  attention  of  the 
courts.  Its  result  was  followed  in  a  Pennsylvania  case  in  1845.  In  this  ca.se, 
which  was  al.so  an  action  for  seducing  tlie  plaintiff's  daiigliter,  the  daughter, 
being  called  as  a  witness  on  the  trial,  testilied  that  she  was  twenty-three  years 
old,  and  single ;  she  liad  a  child,  of  which  the  defendant  was  the  fallier,  and 
whicli  was  about  a  year  old;  she  lived  with  her  father  wlien  lier  child  was 
begotten,  and  when  it  was  born;  her  moliier  was  deceased,  and  she  kept  house 
for  her  father;  she  had  been  at  a  battalion  training,  and  the  defendant  went 
home  with  her;  they  took  supper,  and  very  soon  went  to  bed  together;  the  child 


was  begotten  that  niglit,  but  the  defendant  was  there  twice   afterwards 


and 


slept  witli  her  both  times.     This,   she  further 
custom  of  the  country,  and  her  fatlu'r  knew  of  it,  an 


IP 


:i-'i.: 


.•  4-. 


testified,  was 
new  that  tl 


iiccording  to  the 
ifendant  was 


I   Anti\  p.  >*. 


>    'I 


'i  I  i 


•;-_»i 


60 


ON    THK    liKQL'ISITKS    TO    TllKIK    VAI.IOITV. 


m  '■ 


Tlie  Custom  of    "ISiiiKlliiii 


ii  i  ;! 


Kleupiiifi;  with  heron  the  nii;ht  of  tlu'  battalion  truluini,'.  Hit  father  was  not  in 
tlio  same  room  witli  tiiem,  l)iit  he  saw  lier  in  l)e(1  witli  rlie  ('.efeiKlaiit.  The  jiirl's 
lirother  was  tlieii  calk'd,  and  ti'stilied  liint  lie  saw  the  defend:nit  at  hi-^  father's 
lionsc^on  the  ni^ht  of  the  battalion  trainin-:.,  and  that  Ik!  saw  the  defendant  and  In- 
sister  in  bed  toitether  on  that  niiiht.  A  nninher  of  otlier  witiiess(!s  were  culled, 
and  spoki'  to  the  <ioo(l  character  of  the  plaintiff  ;uii!  his  family,  and  of  his  danf;[hl(r 
except  in  this  inalter.  The  jndire,  after  stalini:-  to  the  jnry  the  mronnds  of  ihc 
action  for  sediieiion,  said:  "This  action  is  always  fomided  on  a  wront;  done  by 
tlie  defendanl,  and  as  regards  the  will  and  consent  of  the  father,  tlu;  daniihter  i> 
snpposcd  to  be\iolalrd  with  force.  It  is  this  absence  of  coii>ent on  his  pari, 
this  violation  of  his  daughter's  chastity  a.ii'ainst  his  will,  that  cntilles  hitn  to 
sustain  his  action  for  a  compensation  in  damages.  Whei;  the  <',i'iminal  int(!i- 
coiir-^e  has  been  had  with  his  knowlediii^  and  nnder  his  (  onnisance,  li(>  would 
seek  redri'ss  with  but  an  dl  ijrace  indei'd.  lie  wonld  not  actually  be;  a  pdrticcps 
mmiiiis,  bi;t  in  want  of  decency  ai\d  in  breach  of  iian  r.tal  duly  he  would 
api)roach  very  near  to  it.  His  indifference  to  his  dauirhtcr's  morals  and  chastiiy 
would  meet  with  but  a  just  retribution  in  her  niisfoi-tune  and  disirracx!.  The 
fault  wonld  be  as  much  his  own  as  her's  or  lier  seducer's;  and  his  assurance  in 
cominir  to  court  to  ask  for  a  rc^ward  f(n"  the  i)crpetratlon  of  a  wronii'  which  was 
known  to  him,  and  which  he  niiiiht  have  i)revented,  M'onid  justify  the  belief  that 
he  had  no  objections  to  its  commission."  As  nirards  the  custom  set  up  to 
excuse  the  plaintiff's  neglect,  the  judjje  said:  "Much  has  been  said  by  the 
plaintiff's  counsel  about  the  custom  in  courtship  which  he  has  (k'nominated 
'bundliuii.'  He  has  said  that  this  custom  prevails  wry  iicnerally  in  the  part  of 
the  country  where  these  parties  reside.  This  may  be  so,  but  I  am  nnwillin;:;  td 
believe  it.  If  it  is  so,  it  is  time  the  custom  should  be  abolished.  I'iven  if  this 
custom  does  prevail,  it  furnishes  no  excuse  ior  the  plaintiff's  cartdessness  or 
his  daughter's  indiscretion.  If  it  be  ;iny  excuse,  it  would  extend  ecpuilly  to 
all  concerned,  and  the  defendant  might  claim  his  portion  of  protectio;i  under  it 
also.  The  plaintiff  has  by  this  time,  I  ai)prehend,  found  out  that  this  custom  is 
dangerous,  at  least,  if  he  does  not  feel  that  it  is  indecent.  A  man  who  takes  no 
pains  to  abolish  this  custom  in  his  own  house  has  no  right  to  complain  of  cou- 
se<iuences  which  most  naturally  follow."  The  jury  returned  a  verdict  for  the 
defendant.' 

Holiiicx  V.  Johnson,'^  decided  in  the  Supremo  Court  of  Pennsylvania  in  ImIl', 
illustrates  this  rule  in  another  phase.  The  cast;  was  an  -iction  of  eject UKiii 
growing  out  of  a  disputed  title  to  laml,  the  i)laliUiff  being  u  negro  boiii  la 
another  State,  and  the  defendant,  in  order  to  rebut  the  presumption  of  marriage 
and  legitimacy  from  cohabitation,  offered  to  prov(>  that  in  thf  region  from  whieli 
the  negro  came  —  the  eastern  part  of  Maryhiml  —  it  was  not  the  custom  for 
coloved  peoi)le  to  form  legal  marriages;''  that  marriage  among  them  was  the 
exception,  ami  not  the  rule;  that  the  majority  of  them  cohabited  promiscuously, 
and  that  this  motle  of  promiscuous  cohabitation  was  the  cust.tm  there  amoiii; 
free  colorcul  persons  as  well  as  slaves.  This  evidence,  it  was  held,  was  proj)'  riy 
rejected.  ".\  custom,  however  ancient,"  saiil  Ui'.ad,  J.,  "  if  contrary  to  uk - 
rality,  ndigion,  and  the  law  of  the  land,  i-aimot  be  a  legal  one,  and  it  is  elearlv 


ll(illj>  r.  Writs,;!  I'a    I..  J.  Hi'X 
il  I'll.  St.  1.V,), 


See  Jackson  v.  I,i  rv(  \ ,  :•  Cow.  HY2. 


i 


A    CUSTOM    Mi;,   r    UK    MOKAI.. 


t;i 


The  Cliarivari. 


iinrc:ison;ibl-,  .uiH  rauiiol  he  ccini.Mlsory.  Triod  by  this  stiinrtard,  the  rcj«(Mi.)n 
of  lliis  (itT.T  to  provi-  Mich  n  .u-toin,  so  foiitriiry  to  the  moral  sense  of  a 
Christian  cominiiiiity,  was  .iniii.'iitly  |)roiier.  We  iiave  never  heard  of  surh  a 
custom  beini:  atteiiiptcil  to  !)(>  !.ro\e<l  In  Kiiirlanii."  ' 

In  a  Nortii  Carolina  case,  a  prosecntion  for  adulti-ry,  there  was  evidence  tliat 
in  a  playful  scnflle  betwi'en  the  parties,  in  the  prcs(>ncc  of  the  defendant's  wife 
and  oliicrs,  the  woman  fell,  or  was  pulled,  into  the  defendant's  lap.  The  State 
insisied  that  such  familiarity  was  evidence  of  sui't,  to  whicli  the  defendant 
replied  that  while  this  niiL';ht  he  so  in  hiu;h  life,  yet  sijcii  acts  of  familiarity 
were  connnon  in  that  section  amons;  plain  people,  sucli  as  the  defendants  were, 
and  that  thev  were  rei^arded  as  innocent  sport.  The  court  havin'j;  left  it  to  the 
j\iry  to  say  wiiethcr  or  not  such  acts  were  customary,  the  defendant  was  con- 
victed, and  on  appeal  the  Supremi'  Court  expressed  its  sympathy  with  the 
"  iiidiuu"<ion  and  horror  "  of  the  trial  jud^^e  at  the  attempt  to  set  up  so  immoral 
a  nistoni.- 

I'.ut,  wliere  adultery  is  sou'j;ht  to  be  proved  by  circumstantial  evidi'uce,  as  hy 
proof  of  the  disposiiimi  of  Mie  pi'rs(jus  changed  and  the  ojiportnuily  to  comn\it 
the  act,  it  seems  clear  that  the  sotial  habits  and  customs  of  the  i)arties,  and  of 
the  community  in  which  they  reside,  are  relevant.'*  As  said  in  an  Eunlish  ease :  ' 
"It  is  manifest  that  the  opiuicms  of  mankind  may  vary  very  much  as  to  the  eir- 
'•nnistances  from  which  the  inference  of  adultery  is  to  be  drawn.  The  opinions  of 
the  jury  may  depend  upon  Uie  sort  of  society  in  wiiich  they  have  lived  —whether 
they  were  aecMistoined  to  associate  with  people  who  were  strict  and  careful,  or 
with  people  who  were  free  and  ea>y  and  sonu.-w'.iat  careless  in  their  conduct. 
One  .set  of  men  may  think  that  if  a  married  wonnin  induli^es  in  any  improper 
familiarity  with  a  man,  she  would  be  likely  to  connnit-  adultery;  whilst  another 
.set  uiay  think  that  a  iireat  decree  of  license  may  exist,  and  yet  that  a  woman 
would  stop  short  of  conniiittins  the  sinat  offence." 

AiiDlher  American  custom  of  doubtful  morality  is  the  dinrivari,  a  word  which 
Dr.  .lolms(m's  Dictionary  does  not  contain,  l)Ut  which  is  defined  by  Webster 
thus:  ".\  mock  serenaile  of  discordant  music,  ketth^s,  tin  horns,  etc.,  de- 
signed to  annoy  and  insult.  It  was  at  llrst  directed  against  widows  who 
married  a  second  time,  at  an  advanced  au'c,  but  is  now  extended  to  other  occa- 
sions of  nocturnal  ainioyance  and  insult."  It  is  not  surprising;  to  find  that  the 
courts  have  not  been  ea'j;i;r  to  indorse  this  practice,  nor  that  in  two  instances, 
at  least,  i!  has  been  uuprolitably  advanced  as  an  excuse  for  certain  lllejial  acts, 
lu  Pennsylvania,  in  I7!»(l,  Samuel  Lewis,  Charles  Hobbes,  Isaac  Ilobbes,  Nathan 
Lewis,  and  Isaac  Mradcn  were  indicated  for  the  murder  of  John  Weston.  On  the 
5th  of  the  pievions  November  there  was  a  weddinsi  at  Weston's  house,  to  which 
lsou(U's  went, 


pri.s 


igh 


'  Till'  (>|i'ni()ii  ;it<()  icl'crs  lo  (•crlaiii  iiii 
mor.'il  "isloms  in  London,  citing  from  the 
l.i)ii(l(  Quarterly  Herieio  of  ,\i)ri],  1S61: 
"  We  eoultl  iiaini!  cnth'c  quiu'lurK  hi  which  it 
Nci'nis  to  1)0  a  custom  Hii'l  men  anil  women 
should  live  in  pvomi'-cuous  concuhinaBe , 
where  the  most  fi'i;];litful  dcbiUKihery  j^ai-s 
on,  night   ami   day,  in  the    lowest    piiljlie 


houses ;  where  the  very  Hhopkcepers  make 
a  profession  of  atheism,  anil  encoui'.a^e  llieir 
poor  customers  to  do  the  sami?." 

-  The  State  v.  Itutner,  7(>  N. «'.  118. 

■■'  Inskcep  v.  JiLskce)),  Tt  low  i, '.'04 ;  Merck- 
mauR  1'.  I'.erckmans,  1(1  N.  ,J.  Ki|.  ll'l;  1"  .\.  .1. 
Ki|.4.'>;!;  Kinirr.  King,  I  Scotch  .Scss.  ("iis.OSJ. 

*  Gothlu  V.  Uelhin,  '2  Sw.  &  Tr.  560 


11? 


it 


•  f 


^^ 


{'4 


I 


M 


f..  if 


H 


li 


"1    ! 


i:  ^  I 

'  i'  li. 


!  :l 


I      ':• 


n  Wt 


62 


ON    THF:    lilK^UlSll'K.S    TO    THKIU    VALIDITY. 


Customs  must  be  Peacfable. 


rather  suspicious  of  them,  told  them  that  they  wer^  welcome  if  they  behaved 
tiiemselves;  and  everytliinj:  went  well  until  the  evenin*;,  when,  the  guests  beinjr 
engaged  in  dancing  in  'in  <iul-house,  the  prisoners  began  to  be  troublesome . 
shoved  the  dancers  off  the  door,  fought  sham  battles  among  themselves,  and 
broke  up  the  company.  Tliey  stood  in  a  row  against  Weston,  who  was  an  old 
man  seventy-three  years  of  age,  and  i)ushing  om;  against  another,  forced  him  to 
the  wall.  Notwithstanding  his  protests,  they  continued  to  ill-use  hiin  for  sonic 
time,  he  being  frecnientiy  thrown  to  the  ground  in  the  scuffles  that  ensued,  all  the 
prisoners  on  one  occasion  falling  on  top  of  him.  Weston  afterwards  left  the 
out-liouse  and  went  into  his  dwelling,  shutting  the  door;  but  the  prisoners  came 
alter  iiim  and  burst  it  open,  mocked  him,  pushed  him  and  his  wife  off  tlieii 
cliairs,  and  after  leaving  the  house,  threw  stones  through  the  windows  and  down 
the  cliimneys.  The  old  man  then  went  out  to  remonstrate,  but  the  rioter-' 
knocked  him  down  and  kicked  him.  Tliey  continued  there  all  that  night  ami 
part  of  the  next  day.  In  the  morning  Weston  complained  of  his  hurts,  and  in 
the  evening  took  to  ids  bed,  and  died  from  their  effects.  On  the  trial,  it  w;is 
urged  by  the  prisoners'  counsel  that  they  "did  nothing  more  than  a  usual 
frolic,  according  to  the  customs  and  manners  of  the  country.  There  was  no 
intention  of  luirt,  no  design  of  mischief,  in  which  the  malice  which  is  th^  neces- 
sary ingn^dient  of  murder  consists."  But  the  State  attorney  replied:  "  \^e  have 
no  custom  in  this  country  of  killing  old  men  at  weddings.  The  Indians  have  a 
cnstom  of  killing  one  another  when  drimk;  and  if  we  indulge  such  practices  as 
iiave  ajjpeared  in  this  case,  we  shall  soon  be  as  barbarous  as  the  savages  of  tlie 
wilderness."  And  the  pre-iident  of  the  court  chargeil  the  jury  that  sport  could 
not  exclude  th<!  presumption  of  malice,  and  the  prisoners  were  convicted  of 
nninler  in  the  second  degree."  .Vuain:  in  Indiana,  in  185;$,  Jesse  Bankus,  Lewi^ 
Simpson,  William  Woods,  and  William  McShirely  were  indicted  for  riot,  in  luiv- 
im;'  surrounded  the  house  of  one  Jacob  Wise,  blowing  iiorns,  singing,  and  hal- 
looing, to  tile  distur!)ance  of  the  neigh!)orhood.  The  Supreme  Court  said:  "11 
i^  urged  that  tliese  defendants  were  but  acting  in  accordance  with  the  custoin  of 
the  country.  But  a  custom  of  violating  the  criminal  laws  will  not  exempt  siuh 
\  roiation  from  punishment."     And  the  judgment  of  conviction  was  atUrmed.'' 

§  ;U.  A  Custom  must  be  Peaceable,  and  acquiesced  in. — A  custoin  must 
have  been  peaceable,  and  acquiesced  in,  and  not  disputed  at  law  or  otherwise: 
for  cusioius  owe  their  origin  to  common  conseul,  and  tills  cannot  be  intended  in 
disputed  cases.*  If  it  has  been  the  subject  of  contention  and  dispute  it  has 
not  recommended  itself  as  expedient  to  all,  and  the  fact  that  it  has  proved  a 
convenience  to  some,  is  counteracted  by  the  fact  that  it  has  also  proved  tin 
inconvenience  to  mtmy.  But  the  nou-consent  of  these  is  as  powerful  as  1 
consent  of  those;  and  as  customs,  to  be  valid,  owe  their  edu'acy  to  coniiiioii 
consent,  the  fact  that  lliey  have  been  imiminorially  disputed  proves  th.U 
universal  consent  was  wanting.*  Notwithstanding  a  contrary  dtr.tum  hi  an  .Vhi- 
baiua  (!ase,''  it  is  settled,  and  upon  good  reasons,  tiiat  a  usage  of  trade  must  be 


»  Till-  State  V.  Lewis,  Add.  '279. 
s  Kiiiikiis  I'.  The  Slide.  4  Ind.  111. 
•'  hiiiu'N  Alir.,  chilli.  'Jil,  art.  I,  §  ;1;  Archer 
V.  ItoUcMiluiin,  11  Mudoi'ii,  Uil. 


♦  Browne  on  Usages  and  Custoni.-i,  18. 

"  "  It  !.•<  not  indispnn-iablo  to  the  validity  id 
a  UBUge  (if  Irado  ihal  it  .should  be  uuivur-idiv 
acquiesced  in ;  fur  this  would  ba  to  auuul  ull 


•t  could 
■icted  of 
;,  Lo\vi>i 
in  li:iv- 
und  lial- 
;\id:  "11 
istoin  of 
ipt  such 
rmcd.' 

om  must 

herwisc; 

ciulud  in 
e  it  has 

provctl  a 
oved  an 

il  as  t 
coimnon 
vc's   th.il 
an  Ala- 
must  lie 

Iviiliility  ot 

IniverMilly 

lauuul  uU 


A    CUSTOM    MLhT    BE    I'EACEAB^K. 


63 


IllustnUious. 


generally  assented  to  as  well  as  as>L'rted  before  it  can  be  established;  it  must  be 
ac(|niese('(l  in  l)y  all  piTsons  actinu  witlun  the  scope  of  its  operations.'     Where 
it  has  been  t!if  subject  of  controver>y  and  contention,  claimed  by  one  class  and 
denied  bv  annilier,  and  only  submitted  to  under  protest  and  to  avoid  litiiration, 
it  cannot  be  presumed  to  have  in'en  so  ac(juiesced  in  as  to  have  entered  into  and 
formed  a  part  of  the  contract.     A  valid  usajje  must  be  not  only  submitted  to, 
l)ut  should  nrcivi'  at  least  the  tacii  acpiiesccnce  of  all  classes  enj^aged  in  the 
trade  which  it   i<  sonujlit  to  affect  and  control.-     Kvidence  offered  to  prove  a 
custom  on  the  part  of  carrii  rs  for  an  intermediate  carrier  to  deduct  from  the 
freifiht  earui<l  by  a  prior  carrier  the  value  of  any  dellciency  between  the  (pian- 
tity  delivered  and  that  stated  in  tlie  bill  of  ladini;,  the  prior  carrier  not  beinj? 
permittcil   to  show  thai  an  error  occurred   in  stating  the  amount  in  a  bill  of 
ladiii.i;,  was  held.  In  a  .Miclii)j;an  cast ,  not  sullUMcn;.  to  show  the  necessary  acipii- 
<  <ceii<:e,  Cm  >i.KV,  C.  .[.,  in  his  opinion,   reviewin:i  it  in  this  lan,<ruau;e :    "The 
testimony  of  witnesses  slmws  that   the  (piestion  (»f  shortai^e  is  freipiently  tlie 
subject  of  dispute,     ('apt.   Klsie  says:    'The  custom  is  sometimes  ac(|uiesccd 
in  by  the  ca|)taiiis  of  ve.-sels,  and  sometimes  disputed.     If  the  shortage  is  small, 
they  f^enerally  pay  it;  if  it  is  lar.iie.  tiiey  y;enerally  dispute  it,  and  leave  it  to  be 
settled   by   the   owners.'      Mr.    Ste|ihenson,    the    sieneral    frei'j;ht-a};ent   of   the 
defendants,  says:   '  I  have  kimwii  captains  to  refuse  to  pay  the  shortau;e,  but  we 
iilways  have  the  freifrht  in  our  own  hands  before  we  settle.     We  invariably  refuse 
to  pay  the  cai)ta!iis  until  the  two  jirincipals  are  aj^reed.'     Capt.   .Montgomery, 
after  testifying'  that  the  eu-toin  is  universal,  says:   '  I  have  known  the  question 
(d  sh(u1au;e  disputed  at  lea^t  a  iiuiidred  times.'     Several  other  witnesscis  j^ive 
e\  ideiice  tliat  the  custom  is  ueneral,  but  the  improsion  which  the  whole  evi- 
dence leaves  in  (jur  minds  is,  that  the  deduction  of  shortage  is  Mibmitted  to 
u  iieii  the  carrier  concedes  that  it  is  his  fault,  or  wliere  tlie  amount  is  not  beyond 
what   is  usual  and  iucideut  to  transi)ortation,  but   t'' it  it   is  disputed   in  other 
cases.     .\  custom  varying;  the  conunon  law  must  be  clearly  proved:   but  we  do 
not   liud  clear  evidence  in  fhi>  case  that  .ship-owners  concede  their  liability  to 
have  deductions  made  from  freiiiht  earned   for  the  value  of  prop<'r(y  recei|)ted 
for  by  mistake.     Tliat  the  railway  companies  assert  the  rifjht,  i-   fully  shown; 
but  it  nuist  be  fj;enerally  assented  to,  as  well  as  asserted,  before  ilie  custom  can 
be  established."  » 

§  .'<L'.  A  Custom  must  be  reasonable. — The  rule  that  a  cusuun  must  be 
reasiiuable  may  be  better  staled  iie.!j;atively,  vi'..:  a  cusIdiu  nnisl  not  be  unrea- 
sonable. An  uin-easonable  cusioii.  is  bad,  and  will  not  be  recojj;nized  by  the 
courts  of  law.'    The  words  "not  reasonable,"  as  used  in  tliis  connection,  are, 


•'usiiiiiis  ns  to  tliO'C  wlio  wt're  iiiiwilliiiK  to 
aliide  liy  tlicm.  Ill^l(';l(l  oi  liiiviiij?  tiie  lorce 
of  liiw  •iiiil  lieiMf?  lit  Ki'iH^i'iil  ()l(lin:ilii)ii,  llicy 
woiilil  (li'iMMid  for  tlieir  oju'ralioii  upon  the 
KiiUiiiloiis  niiisc.nt  of  j'vi'vv  iit-rsoii  ajiainst 
«liom  Ihoy  «i!iu  invokeil."  Iteslia  c.  Hol- 
land, Vi  Ala.  rilit. 

'  Slionf!  r.  (iiiind  Trunk  I;.  Co.,  i:>  Mm'Ii. 
205;  McMasliMs  c.  I'enn.-jlvaniu  l{.  Co,,  Ul) 
I'll.  HI.  374. 


-  Dixon  r.  Uunlinm,  14  111.  .i^^. 

■'  sU'ong  r.  (iraud  'I'l  link  it.  Co.,  \r>  Mich. 
•JOti. 

*  l{iiKei-s  r.  lirenton,  log.  1!.  '.'tl ;  lliltou  w. 
Graiivilii!,  Dav.  \,  M.  t!l4 ;  .1  Q.  U.  701 ;  lli\  v. 
(laidiiK.T,  1  Hiil.-l.  VX>.  I!ex  e.  (iordoii,  1 
IJarn.  i';  \U\.  ,Vi( ;  llieuunT  i-.  Mull,  I-.  U. 
I  (".  I'.  74S;  !•.'  ,lur.  (N.  s.,  04 1^ .  Wilkes  c. 
Hroadlicnl,  I  Wil-.  li.!;  1  Kiiiie'-  Ala-.,  chap, 
2ti,  ail.  I,  §  4;  I  la;  Ion  c.  (.'oiby,  :>  (J.  15.  U5, 


"I 
r1 


n 

Hi  '^1 


k  I 


:^!l 


.il^' 


>f'  il 


i 


I'.l  t 


i 

i 

04 


ON    THK    KKQULSITES    TO    THEIK    VALIUIl  V 


Reasonableness. 


acoordiii?;  to  Mr.  Buownk,  to  ho  understood  in  a  U'i;;a]  sense;  and  in  cominj;  to  a 
conelnsion  as  to  what  customs  are  riasoual^Ie  and  what  unreasonable,  regard 
must  be  liad  to  the  leijal  dt^cisions  wliich  have  been  made  in  times  past  upon 
eases  iuvolviuu;  similar  (|Uestions;  for  "  reasonable,"  says  Cokk,  "is  not  always 
to  be  understood  of  every  unlearned  man's  reason,  but  of  the  artitieial  and  le<;al 
reason  warranted  by  authority  of  law."  '  Tlierefore,  a  custom  may  be  Rood 
thoujih  the  particular  reason  of  it  cannot  be  assigned,  for  it  sutlices  if  no  jiood 
letr;d  reason  can  be  assigned  against  it.  A  custom  is  not  unreasonable  merely 
beciuise  it  is  contrary  to  a  particular  rule  or  maxim  of  the  common  law;  other- 
wise gavelkind  and  borough-Ihiglish,  which  are  directly  contrary  to  the  ordiniiry 
law  of  descent,  or  the  custom  of  Kent,  which  is  contrary  to  the  law  of  escheats, 
would  not  be  valid  customs;  indeed,  it  is  the  very  essence  of  a  custom  that  it 
should  vary  from  the  common  la\v.-  As  we  shall  see  hereafter,  wlieu  we  come 
tu  consider  the  validity  of  commercial  usages  which  conflict  with  settled  rules  of 
l;\w,  a  custom  is  not  bad  simply  because  it  alters  an  estal)lished  rule;  yet,  at  the 
same  time,  there  are  certain  rules  of  law  which  are  founded  on  public  policy, 
and  which  cannot  be  disturbed  without  injury  to  all  concerned.  Customs  con- 
trary to  these  rules  are,  therefore,  invtilid.'* 

§  3.S.  Customs  beneficial  to  the  Pr.blic  Good,  though  injurious  to  some.  —  A 
custom  is  not  unreasonable  simplv  because  it  is  injurious  to  private  persons  or 
interests,  if  it  be  for  the  pui)lic  good.  Examples  of  such  customs  may  be  seen 
in  those  which  allow  the  pulling  down  of  houses  to  prevent  the  spreading  of  a 
coutlagration,  and  which  permit  one  to  turn  his  plough  on  the  headland  of  another; 
the  former  may  stop  a  great  public  calamity,  the  latter  favors  and  promote.^ 
agriculture.*  In  this  class  fell  the  custom  in  VoiKjhloH  v.  Atioood,^  for  surveyors, 
duly  chosen,  to  destroy  corrupt  victuals  e.vposed  to  sale.  Aiwood  and  others 
were  sued  in  trespass  for  taking  away  the  meat  of  the  plaintiff,  who  Wiis  a 
butcher.  The  defendants  justilied  by  virtue  of  a  custom  of  the  manor  by  wliicli 
each  year  two  surveyors  were  chosen  to  inspect  the  victuals  sold  within  the 
place,  and  to  destroy  such  as  were  found  to  i)e  corrupt,  etc. ;  that  the  defendaiUs 
were  such  surveyors,  so  clu)sen,  etc.  The  Court  of  Common  IMeas  sustained  the 
custom.  It  Avas  hard,  they  said,  to  disallow  it,  because  the  design  of  it  was  the 
preservation  of  men's  health,  even  though  to  allow  it  were  to  give  men  too  great 
a  power  of  seizing  and  destroying  other  men's  goods.  So,  the  custom  of  a  city 
to  nuike  a  by-law  to  oblige  a  person  to  take  an  ofTice,  under  a  penalty.*  So,  too, 
the  custom  that  where  a  duty  was  payable  on  corn  importeil  into  a  city,  citi- 
zens, being  factors,  wen;  exempt  from  it;  Uiis  in  encouragement  of  trade.' 
Also,  to  dig  gravel  in  the  adjacent  land  to  repair  a  way ; '^  to  have  a  watcriiiu'- 
place  in  the  adjacent  land;  '  to  dig  for  ballast; '"  to  dry  nets  o!i  another's  land;  '' 

•  Rrownc  on  Usagos  &  (^nstoms,  19;  Co.  "  City  of  liondon  v.  Vanacve,  12  Modoii., 

Lit.  62.  269. 

'- llorton  V.  lieckinun,  6  Term  Uei).  760;  "  Corkscdf^e  r.  K.-insliuw,  1  Doug.  119. 

Tyson  V.  Smith,  9  .\(i.  ft  15.  421.  8  nani-'s  Abr.,  chap.  '.'(!,  art.  3,  §  1. 

3  Post,  Chap.  V.  !>  Ihid. 


<  Dane's  Abr.,  chaii.  2(i,  art.  1,  §  9;  ;j  Salk. 
112;  Fawcct  v.  l.owllier,  2  Ves.  300. 
•  1  Modern,  Jdi. 


tbid. 
Ibid. 


m 


A    CUSTOM    MUST    BE    REASONABLK. 


65 


.1 


lUustriitions. 


I2  Morti-'ii., 
119. 


to  cut  rushes  in  the  lord's  waste  for  one  occupying  a  house  and  liaving  common 
there,  as  against  a  stranger; '  to  distrain  the  goods,  etc.,  of  a  ship  for  the  port 
duties;  ^  for  tlic  lord  of  the  manor  to  have  toll  for  all  goods  landed  at  a  wharf,  in 
consideration  of  his  keeping  it  in  repair; '  to  take  three  bushels  of  barley  out  of 
every  ship's  cargo  brought  to  a  certain  quay  to  be  exported  ;  *  for  all  the  freemen 
and  citizens  of  a  town,  on  a  particular  day  in  the  year,  to  enter  upon  a  close  for 
the  purpose  of  horse-racing.*  In  Marquis  of  Salishunj  v.  Gladstone,^  which  was 
an  action  of  ejectment  for  a  forfeiture  by  a  lord  against  a  copyholder  of  inheri- 
tance, for  digging  and  taking  away  clay  from  the  manor,  to  be  sold  off  the  manor 
to  any  one,  the  defendant  pleaded  and  proved  a  custom  from  time  immemorial 
for  the  copyholders  of  inheritance,  without  license  from  the  lord,  to  break  the 
surface  and  dig  clay  without  limit,  for  the  purpose  of  making  it  into  bricks  to 
be  sold  off  the  manor.  The  custom  was  held  good  in  law.  Its  valiciity  being 
disputed  on  the  ground  of  unrea>i<)nableness,  Lord  Chanwoimii  said:  "It  is 
true  that  a  custom,  to  be  valid,  must  be  reasonable.  It  is  not  easy  to  define  the 
word  'reasonable,'  when  applied  to  a  custom  regulating  the  relation  between  a 
lord  and  his  copyholders.  That  relation  must  have  had  its  origin  in  remote 
times,  by  agreement  between  the  lord,  as  absolute  owner  of  the  whole  manor  in 
fee-simple,  and  those  whom  he  was  content  to  allow  to  occupy  portions  of  it  as 
his  tcnants-at-will.  The  rights  of  these  tenants  must  have  depended,  in  their 
origin,  entirely  on  the  will  of  the  lord,  and  it  is  hard  to  say  how  any  stipulations 
regulating  such  rights  can,  as  between  the  tenant  and  the  lord,  be  deemed  void 
as  being  unreasonable.  Ctijn,^  est  dare  rjuf  est  dixpoiwrr.  Whatever  restrictions, 
therefore,  or  conditions  the  lord  may  have  imposed,  or  wliatever  rights  the 
tenants  may  have  demanded,  all  were  within  the  compelrncy  of  the  lord  to  grant, 
or  uf  tlie  tenants  to  stipulate  for.  And  if  it  were  possible  to  show  tliat  before 
the  time  of  legal  memory  any  lawful  arrangemeut  liiid  been  actually  come  to 
between  the  lord  and  his  tenants  as  to  the  terms  on  which  the  latter  should  hold 
their  lands,  and  that  arnuiuement  had  been  constantly  acted  on,  I  do  not  see 
how  it  couUl  ever  be  treated  as  being  void  because  it  was  unreasonable. 
In  truth,  I  believe  lliat  when  it  is  said  that  a  custom  is  void  because  it  is  unrea- 
sonable, nothing  more  is  meant  than  tliivt  the  unreasonable  cliaracter  of  the 
alleged  custom  conclusively  proves  that  the  usa'iie,  even  thougli  it  may  have 
existed  iramemorially,  must  have  resulted  from  accident  or  indulgence,  and  not 
from  any  right  conferred  in  ancient  times  on  the  party  setting  up  the  custom." ' 

§34.  Customs  not  unreasonable  If   simply  inconvenient.  —  It  was   an  old 

riiic,  in  considering  the  validity  of  customs,  that  a  custom  sliould  not  be  con- 
sidered unreasonable  merely  bec^ause  it  might  be  inconvenient.  Thus,  a  custom 
for  all  the  inhid)itants  of  a  parish  to  play  at  games  in  a  partie\dar  clo.se  was 
flood,  though  if  they  were  all  to  go  tliere  at  the  same  time  the  object  might 
become  impossible.     So,  a  custom  for  tlshermen  to  dry  their  nets  on  land  atl|a- 


'  I'.ciiii  V.  IJl  )om,  3  Wils.  4.')8. 

■  \\  iiirkesUnc  ('.  Kbdcii,  12  Modern,  216. 

"  Ciilii"!  V.  Smith,  (Jowp.  i7. 

*  s.'ijciil  r.  Wuiid,  1  Wils.  91. 

^  Momisuy  c.  Isiuay,  1  liurl.  &  Coll.  7'J!);  9 


Jur.  (N.  s.)  aoti;  :V2  U  J.  (Kxch.)  94;  II  Week. 
Ile|).  'J70;  :!  Hurl.  &  Colt.  486. 

'■  9  II.  I..  Can.  0i)2. 

•  Anil  s((<  I'.i.shopot  VVincliestcrw.  Knipht, 
1  r.  Will-  |.i,i;  Duuii  of  Kly  v.  Wuireu,  2  Atk. 
189. 


\     V. 


l\» 


I    1 


<1l 


II 


66 


ON    TIIK    KKQUISITJSS    TO    THEIU    VAl,IDirV. 


■■»>> 


Reasonableness. 


1;  Mi 


V, 


„ 


C  'nt  to  llie  sea  is  good,  thonjih  if  all  were  to  resort  there  at  the  same  tinn . 
great  inconvenience  wonid  follow.  So,  all  the  subjects  of  the  kingdom  have  .1 
right  to  enler  a  port,  even  though  a  small  port  might  be  speedily  filled.  It 
would  be  innnateriul  to  the  validity  of  this  last  custom  that  all  people  could  not 
exercise  this  riglit  at  the  same  time.  Many  of  the  old  English  cases  illustniu 
this  rule.  In  Hix  v.  Gardiner,^  a  custom  for  all  inhabitants  within  a  manor  to 
grind  their  corn  at  the  mill  of  the  lord  of  the  manor  was  held  to  be  good.  In 
Drake  v.  Wi'jlcsioorlh,'-  Mie  custom  was  for  all  the  householders  of  the  parish 
to  grind  all  the  corn  which  should  be  used  by  them,  in  their  respective  housi's, 
and  to  pay  for  the  grinding  thereof  a  reasonable  toll,  and  it  was  held  good.  In 
Cocksedfje  v.  Fanshaio,''^  a  custom  for  the  corporation  of  London  to  receive  a  toll 
of  one  farthing  on  all  corn  was  sustained.  In  Tyson  v.  iSmith,*  an  action  of 
trespass,  the  custom  set  up  was  for  all  victuallers  to  erect  booths  on  a  common. 
a  rcasc  "'  '•  time  before  the  feast  of  Pentecost.  It  was  argued  that  the  custom 
was  I  ,v  lable,  because  too  extensive.  But  it  was  sustained  by  the  King's 
Benc'  ,  ^  .  '.erwards  by  the  Court  of  Exchequer  Chamber.  "The  plaintiff's 
arguments  lo  show  that  this  custom  was  bad  in  law,"  said  Dknman,  C.  J.,  in 
the  innar's  Bench,  "  resolved  themselves  into  the  objection  that  It  was  too  lariio 
and  indeli   '  e,  m-  itting  all  victuallers,  an  undefined  body,  who  might  cover 

the  whole  land  ir.  (ju  'sti<  u,  to  the  exclusion  of  the  plaintiff  himself,  and  all 
others  wishing  to  attend  the  fair,  during  a  considerable  time  of  tlie  year.  But, 
in  the  abscuice  of  all  authority,  we  are  of  opinion  that  the  custom  is  good.  The 
description  of  a  victualler  is  sufliclently  definite,  and  the  attendance  of  that 
class  of  persons  at  a  fair  is  convenient,  or  rather  necessary,  for  the  refreshnicnt 
of  those  resorting  to  it.  The  exclusion  of  the  owner  from  his  own  soil  may 
certainly  be  lawful  by  virt\ie  of  reasonable  custom,  and  the  exclusion  for  the 
whole  period  may  be  necessary  to  induce  the  victualler  to  bring  his  booth  lo  a 
spot  possibly  so  distant  that  frequent  removals  and  reerections  might  reduce  his 
profits  to  nothing.  And  the  apprehension  that  the  resort  of  victuallers  might  be 
so  numerous  as  to  interfere  with  all  others  wlio  may  have  business  to  transact 
at  the  fair,  appears  to  us  unreasonable  and  extravagant.  If  it  could  prevail,  it 
must  indeed  extinguish  the  fair  itself,  to  which  all  traders  of  every  class  may 
resort  for  the  purpose  of  vending  their  wares,  while  due  regard  to  their  own 
interest  must  limit  their  actual  attendance  to  such  a  number  as  apja-ars  likely 
to  have  a  fair  chance  of  trading  successfully."  "  But  it  is  said,"  remarked 
TiN'DAt,,  C.  J.,  in  the  Exchequer  Chamber,  '» that  the  number  of  these  victuallers 
may  be  so  larg^,  and  the  space  occupied  by  each  so  great,  as  that  the  whole 
portion  of  tlu;  eoiuinon  set  out  for  the  fair  nuiy  be  taken  by  them,  in  exclusion 
of  the  rest.  If  this  argument  were  to  pri'vail,  it  is  manifest  that  it  would  be 
e(iually  applicable  with  respect  to  every  ii^ri  icular  branch  of  traders  who  freipicnt 
the  fair;  tlu;  sellers  of  corn  or  of  cattle,  the  persons  who  deposit  their  (loth. 
the  dealers  In  earthen-ware,  and  the  like,  might  with  equal  show  of  reason  bi 
stated,  by  possibility,  to  become  occupiers  of  the  whole  ground,  to  the  exchisii'ii 
of  the  rest.  Hut  it  is  obvious  that  this  is  not  an  argument  against  the  custom 
being  reasonable  In  its  original  connnencenient,  or  against  the  prescription  for 


1  1  Blilsf.  195. 
s  Willeb,  (wl. 


»  1  Dong.  119. 

♦  1  Nev.  &  I'.  784;  1 1'er.  &  Dav.  ;)07. 


A    (  18H).\I    MUST    BE    KKAtJONABLE. 


»)7 


i:i!-.| 


u  time. 

have  11 

h'A.     It 

)Ul(l  Il'il 

lustruir 
iinor  to 
)()d.     Jn 
.1  parish 
houstis, 
lod.     In 
ivo  a  toll 
iclioii  ol 
jommon, 
e  (•uslom 
e  Kinii's 
)laint'frs 
,  C.  J.,  in 
too  lartrc 
2ht  cover 
f,  and  all 
sar.     But, 
Dod.    The 
;e  of  that 
irosliiiK'nl 
soil  may 
in  for  the 
|)()oth  to  a 
•I'd nee  his 
Is  luifilit  be 
transact 
Iprovail,  it 
jclass  may 
their  own 
■iirs  likely 
rcniavkeil 
ictiiallcrs 
It  he  whole 
exchision 
would  be 
|o  fre(iiient 
iieir  clolli- 
rciusoii  be 
exc!ii>i'"i 
Ihe  eiisloiii 
•iption  for 


,  ;i07. 


Illustrations. 


the  fair  hciii-i  a  reasonable  prescription;  it  is  an  objection  only  to  the  mode  of 
exerciMUj;  the  rights  so  claimed,  whether  under  liie  custom  or  the  prescription. 
All  ini-onvenience  of  tiiis  description  will  provide  its  own  remedy;  if  it  occurs 
cncc,  it-  will  not  lie  likely  to  occur  auaiu.  It  is  in  the  hiiihest  dej^ree  imiirobable 
ll.at  ii  sliduld  ever  occur  auain  at  ail.  \  little  previous  iii(|uiry  will  at  all  times 
|ire\<iil  its  recurrence.  .And  in  liiiiniiKjton  v.  Tinjlor,^  where  it  was  objected 
that  .1  prescription  was  uncerlain,  and  therefore  void,  wlihdi  (!laime(l  toll  for  a 
stall,  and  the  land  ^ prop!' H  rAmi  staUnni,''  etc.,  the  objection  was  not  allowed; 
fortius,  it  was  said,  '  shall  be  ascertained  by  the  usaite  of  the  fair.'  And  these 
are  precisely  the  points  of  consideration  to  which  the  judges  must  advert  when 
called  upon  to  determine  whether  the  custom  is  void  or  not.  It  is  not  void  as 
bidng  afiainst  law;  and  if  alleged  to  be  void  becau.se  inconvenient  in  a  high 
degree  in  it>  enjoyment,  and  therefore  unreasonable,  they  must  look  1o  the 
probabilities  of  the  case,  and  be  satistied  that  the  inconvenience  is  real,  general, 
and  extensive,  before  they  hold  a  cu.stom  bad  upon  that  ground,  which  a  jury 
have  found  to  exist  and  to  have  been  acted  upon  from  beyond  the  time  of  legal 
memory." 

§  35.  Customs  injurious  to  the  Public  bad,  though  beneficial  to  some.  —  On 
the  other  hand,  a  custom  that  is  contrary  to  the  public  good,  or  injurious  or  preju- 
dicial to  the  many  and  benelicial  only  to  some  particular  person,  is  repugnant  to 
the  law  of  reason,  and  void;  such  a  custom  could  not  have  had  a  reasonable 
commencement.  Examples  are  present  in  the  custom  set  up  in  a  mano."  on  the 
part  of  the  lord,  that  the  commoner  cannot  turn  in  his  eattle  until  the  lord  has 
put  In  his  own;  this  is  clearly  bad,  being  injurious  to  the  multitude  and  bene- 
tlcial  only  to  the  lord.  So,  a  custom  that  the  lord  of  the  mt.nor  shall  have;  a 
certain  sum  for  every  pound  breach  of  any  stranger,  or  that  the  lord  of  the 
manor  may  detain  a  distresB  taken  upon  his  deiiie«;nes  tiiiii!  line  be  mad(!  lor  the 
damage,  at  thi-  lord's  will.  So,  a  custom  in  re^iraiiii  of  trade'. '^  So  arc  customs 
for  parishi(juers,  on  the  peramliulation  of  the  lidundaries,  to  go  through  a  par- 
ticular house  situated  in  the  parish,  but  not  upon  tlic  hoiindary  lint;;  '  for  the 
inhabitants  of  a  parish  to  exercise  and  train  horses,  at  all  seasonable  times  of 
the  year,  beyond  tin;  limits  of  the  parish.'  In  all  these  instances,  ;ind  many 
others  which  are  to  be  found  in  the  liooks,  the  customs  are  hehl  to  be  void,  on 
tile  ground  of  their  having  had  no  reasonable  comnn'ncement,  but  as  being 
founded  in  wrong  and  usurpation,  and  not  on  the  voluntary  consent  of  the 
people  to  whom  they  relate.-' 

i}  'Mi.  The  Existence  of  unreasonable  Modern  Usasres  doubted,  —  Chief 
■  lustice  Tii(»Mi'S(.\,  of  IV'im.sylvania,  in  McM(i.st<:rs  v.  Pcnnsijlmuiia  linUnxid  C'om- 
ixtiiij/'  thought  that  in  modern  times  it  would  not  be  likely  that  anything  wiiich 
was  not  reasonable  woiihl  be  suffered  to  grow  into  a  custom;  and  Ciikkvks,  ,F., 
;n  an  earlier  Soulii  Carolina  case,"  exiiressed  a  similar  opinion.     "  It  is  argued," 


'  i  T.iiiw.  It.  ('.  i.-iiT. 

-  Mayoi-df  Wiiiluii  ,-.  Wilks,  II  ModtMii,  4S. 

■  Taylor  c.  Devev.T  .\il.  A  K.  4011;  'J  Nev. 
.V  I'.  4ti'.i;  1  Jur.  MV2;  w .  \V.  *  I).  t;t(i. 

'  Sowerby  r.  Cnleiiian,  I..  15.  'i  Excll.  {)6; 
■  <'  1..  J.  (K.\ch.)  .IT. 


•■'  Smith  r.  Tysi.n,  I   I'cr.  *  T)av.  :!(i7. 
'■  (io  I'a.  St.  ;!74. 

■  IJnrki-ilale  i\  ISiown,  1  Noll  &  M.fil";  9 
Am.  Dec.  TJd. 


■i 


II;'' 


^K- 


I  p    "'  i 


.R   !? 


i   ^: 


68 


ON    THK    UKQUIHITKS    TO   THKIK    VALIDITY. 


Reasonableness. 


said  he,  "  that  this  usage  is  unreiisoiiahle,  and  therefore  not  a  good  usage.  I 
linow  wo  frequently  say  that  a  iisnge,  to  be  binding,  must  be  reasonable; 
i)nt  I  very  much  doubt  whether  this  is  not  a  mistaken  view  of  the  subject,  and 
drawn  from  a  suiijiosed,  :)nt  not  real  analogy  between  commercial  usages  and 
common-law  customs.  I  doubt  whether  there  can  be  a  commercial  usa^rc  vvhicli 
can  be  deemed  so  palpaljly  unreasonable  as  not  to  be  binding.  A  us:ige  so 
unreasonal)le  can  never  grow  up.  The  free  course  of  trade  will  not  permit  it; 
as  well  miglit  a  plant  vegetate  under  a  great  incumbent  weight.  That  it  is  a 
usage  is  itself  a  proof  of  its  reasonableness,  so  irrefragable  that  no  abstract 
reasoning  can  explain  it  away.  The  real  inquiry  ouglit  to  bi- :  Is  it  a  usage?  Has 
it  been  sufilciently  established?  To  establish  a  usage,  it  ought  to  l>e  proved 
to  be  so  <';eneral,  uniform,  and  frequent  as  to  warrant  an  inference  that  the 
l)arty  against  whom  the  benellt  ot  it  is  claimed  had  a  knowledge  of  it,  and  con- 
tracted with  reference  to  it."  Nevertheless,  as  a  matter  of  fact,  numerous 
usages  have  been  set  up  in  vei'y  recent  times  that  the  courts  have  been  obliged 
to  declare  unreasonable. 

§  37.  Usages  prima  facie  reasonable  —  The  Test  of  their  Reasonableness.  — 
But  proof  tliat  a  custom  is  general  and  established  raises  a  presumption  that 
it  is  reasonable.  As  said  in  Cox  v.  Charleston,  etc.,  Insurance  Cmnpiiny,^  "Proof 
of  a  general  custom  furnishes  a  strong  reason  why  we  should  regard  it  as  rea- 
sonable. It  must  be  sancticjned  by  general  concurrence  in  its  use  for  sevcjral 
years,  before  it  can  be  .said  legally  to  exist.  If  it  was  unreasonable,  and  of 
course  without  necessity,  reasonable  and  prudent  men  would  not  continue  to 
peril  both  life  and  |)roiierty  to  give  it  existence.  From  proof  of  it  as  the  general 
custom  of  the  trade,  we  are  bound,  at  least  prima  facie,  to  conclude  that  it  is 
reasonable."  And  it  is  to  be  remembered  that  usages  api)arently  unreasoiiMble 
may  have  been  so  long  continued  as  to  have  acquired  the  force  of  law,  and  the 
unreasonableness  now  apparent  may  have  grown  out  of  changes  occurring  after 
the  usage  was  estiiblislied.  In  such  a  case  a  court  must  take  it  as  it.flnds  it,  and 
give  its  judgment  in  accordance  thereto.  But  when  a  question  is  first  presentid 
as  to  giving  legal  effect  to  a  usage  proved  to  exist,  where  its  binding  force  or 
its  adnussibiliiy  is  denied  by  one  of  the  parties  to  the  cause,  a  court  will  not 
enforce  or  sanction  it  unless  it  be  reasonable  and  convenient,  ami  iidapted  not 
only  to  increase  facilities  in  trade,  but  to  the  promotion  of  just  dealings  between 
parties.'^  Subject  to  these  exceptions,  it  is  settled  that  if  a  usage  leads  to  con- 
sequences which  are  absurd,  or  which  could  not  be  fairly  presumed  to  have  been 
contemplated  by  the  i)arties,  the  presumption  is  repelled  whicli  the  law  might 
otherwise  make,  that  it  was  intended  to  be  adopted  as  part  of  the  contnici. 
Therefore,  courts  of  law  will  not  enforce  unreasonable  or  absurd  usages,  how- 
ever uniform  and  well  known.  Parties,  in  fr;iii\ing  their  contracts,  have  a  "ishf 
to  disregard  them,  and  cannot  be  held  to  have  enteied  into  written  stipulations 
with  any  reference  to  them.*  But  there  is  little  doubt  that  a  usage  known  tea 
person,  and  in  accordance  to  whose  burdens  and  obligations  tie  has  contracted, 
would  not  be  set  aside  by  a  court  of  law  simply  because  it  was  unreasonable. 


W 


4t 


r 

1" 

1 

If: 

i; 

m 

3  Kieh.  L.  331. 
•  Hubliard,  J.,  in  Macy  v.  Whaling  Ins.  Co., 
9  Mete.  354. 


seccomb  v.  Proviiieial  luB.  Co.,  10  ^Vllen, 


806. 


^ 


I  NKKASOiNABLE    USAGES. 


69 


Vendor  and  Pint'liascr. 


<a!li*.    I 
ionable; 
ect,  anfl 
iSjes  and 
;c  which 
isaj^e  so 
innit  it; 
it  it  is  a 
abstract 
re?    lias 
3  proved 
that   tlie 
and  con- 
lUineToiis 
a  obliged 


lenes3.  — 
ition  that 
,1  "  Proof 
it  as  rea- 
or  several 
Ic,  and  of 
)ntiniie  to 
le  i:;onernl 
that  it  is 
easonnlile 
,  and  the 
rin'4  after 
lads  it,  and 
presenti'd 
Ji<I  force  or 
Irt  will  not 
llaiitiHl  not 
|rs  between 
ids  to  con- 
have  been 
hiw  niii:lit 
contract. 
|.i<res,  how- 
live  a  Tizht 
;ipulatioiis 
Lnown  to  a 
[ontracted, 
leasouable. 

3o.,  10  M\en, 


A  man  may,  witii  Ids  eyes  open,  make  an  absnrd,  opi)ressive,  or  unreasonable 
contraci,  and  l)ind  iiini'^elf  to  Mie  p(  rformance  of  strict  aiitl  onerous  obligations, 
yet  a  i'ourt  of  law  will  not  for  this  reason  intt-rfer.'.' 

Testtul  liv  tliese  eonsideraliou^;,  the  followinii  iis.iiics  of  modern  growth  have 
been  declared  tnnva-ionable  -and  for  that  reason  invalid  — in  the  followinj; 
relations :  — 

§  ;!S.  Unreasonable  Usages  —  Between  Vendor  and  Purchaser.  —  In  the 
relation  of  vendor  ami  pni'eliaser  these  are  unreasonable:  A  custom  authorizing, 
on  a  contract  for  tjoods  of  a  specilled  character,  the  delivery  of  different  goods, 
or  on  a  sale  of  the  troods  of  one  mill,  the  delivery  of  the  goods  of  another  mill; ' 
a  usage  that  sales  of  a  particular  class  of  goixN  ;ire  subject  to  the  approval  of  a 
public  inspector,  but  that  if  there  is  no  such  inspector,  a  buyer  may  rescind  his 
purchase  at  pleasure;'  a  usage  that  no  title  passes,  upon  an  ordinary  sale  and 
delivery,  without  actual  payment  of  the  consideration  within  a  certain  number  of 
days;*  a  custom  that  if  a  note  is  given  for  a  gold-mine,  and  it  proves  unpro- 
ductive, ordoes  not  turn  out  according  to  expectation,  it  is  given  up; »  a  custom 
for  merchants  to  sign  receipts  presented  by  cartmeii  with  goods,  without  any 
inquiry  on  the  part  of  the  receiving-clerk  or  porter  as  to  their  ownership  or  the 
place  from  which  they  were  received ;  *  a  custom  of  a  board  of  trade,  on  cash 
sales  of  produce  or  provisions,  giving  the  buyer  the  privilege  of  having  them 
inspected  at  his  own  expense,  but  if  he  accepts  them  without  inspection,  he 
tiikes  them  at  his  own  risk  as  to  qualitj',  even  if  the  vendor  occupies  a  position 
wlicre  he  may  be  supposed  to  know  the  quality  of  the  goods,  and  tlie  vendee 
n  lies  upon  this  supposition; '  acustom  among  dealers  in  cotton  that  warehouse- 
receipts  to  deliver  to  a  person,  or  order,  or  bearer,  the  number  of  bales  therein 
specified,  are  transiVrable  by  delivery  without  indorsement,  and  that  such 
transfer  |)asses  the  cotton  without  inquiry  as  to  title,  unless  notice  is  given  that 
the  receipts  have  been  lost,  or  have  got  into  the  hands  of  one  not  the  owner 
or  uvi  entitled  to  them;^  a  usage  that  where  the  vendor  of  goods  receives  a 
note  of  the  consignee,  without  the  indorsement  of  the  purchaser,  the  latter  is 
discliarged,  and  the  maker  alone  remains  liable;"  acustom  among  merchants 


'  See  remarks  of  Cloasby,  B.,  in  Maxteil 
«.  Paine,  !-.  R.  4  Kxeli.  -JIO. 

»  IScals  V.  Teny,  -i  Sandf.  127. 

«  Boarcinian  i-.  Spooner,  lo  Allen,  'XiX 

*  Jla.-kiiis  ,:  \Varicn,  11.5  Mass.  ,',14. 

'  "If  tliuve  be  sucli  a  custom,  it  is  so  n;i- 
rcasonalilc  that  it  was  probably  enforced  by 
the  bowie-knife."  Leonard  v.  Peeples,  30 
Oa.  til. 

'  "Kntir(tly  unrea.»oii.able,  bec.iusc  it 
placed  the  i'nnse(nien(H!s  of  one  person's 
negligence  and  inattention  upon  another,  in 
no  way  connected  with  him,  having  no  con- 
trol over  his  conauct,  and  tor  whose  acts  be 
could  be  in  no  proper  sense  responsible.  A 
custom  toler.itinj?  carelessness  and  inat- 
tention in  Ibe  ordinal^  atl'airs  of  business 
would  be  inconsistent  with  the  legal  as  well 
as  the  social  diries    which  one  person,  in 


those  affairs,  owes  to  another."    Daniels,  J., 
in  Gallup  c.  I.ederer,  J  llun,  'i.S-i. 

'  Clilcago  Packing  Co.  v.  Tilton.HT  III.  r^t8. 

"  "None  but  gooil  customs  have  any  va 
lidity.  A  custom  that  ha.s  a  tendeiwy  to 
tempt  parties  to  acts  of  wrong  doing,  bad 
faith,  or  dishonesty,  <'.;tnnot  be  ;i  good  cus- 
tom. A  bad  custom  ought  to  be  abolished. 
Mains  u.iitii  est  itholendas."  I'eck,  C  J.,  iu 
Lehman  v.  Marsliall,  47  Ala.  :51>-2. 

»  "  It  is  not  denied  but  that  the  dcsaling 
wa.s  with  the  defendant,  lie  boiiglit  and  re- 
ceived the  goods.  The  idaintitf  sent  for  liis 
money.  Tin;  debtor  had  gone  to  cea.  The 
note  of  another  was  taken  by  tlie  plaiiUiff 's 
agent.  Now,  woubl  it  be  rea.sonable  that 
the  plaintiff  should,  from  thi.s  isolated  cir- 
cumstance, unaccompanied  with  iiny  satia- 
factoi-y  proof  wliy  or  wherefore  it  was  done, 


'f 


m 


m 


n 


■■.im 


I'  is 


1 


I      !  1 


ill 
Iff 


u  \ 


1] 


! 


a    ■ 


il'''^ 


1-:! 


70 


ON    THK    KKyUIMri.N     l(»     I  III. lit    \ALII>ITV 


Unreasonable  I  safius. 


to  have  their  sjoods  sent  to  their  stores  by  loii'?  and  eirciiitous  routes,  wli.  ii 
imrcliasod  at  the  stores  of  near  neiiihl)ors; '  a  custom  of  a  shopiiceper  to 
iialaiK-e  tiis  bool^s  annually,  and  cliar^^e  interest  ou  tlic  balance  of  a  running; 
aeiount  where  there  has  been  no  settleinent.'- 

§  .'50.  Same  —  Banlss  and  Banking.  —  A  custom  of  banks  to  honor  the  occa- 
sional overdrafts  of  customers  whose  standing  is  i^ood,  is  unreasonable,'  and  so 
is  a  custom  in  banks  not  to  rectify  mistakes  unless  discovered  before  the  i)ers(>M 
leaves  the  room;  *  but  this  is  not  so  of  a  custoui  whicii  rc()iiin-s  every  depositor 
to  |>roduce  Ins  pass-book  vvlien  demanding  payment  of  a  deposit.^ 


1)C  debarred  tlic  rijjlit  of  recovering  thedobt 
fniin  the  true  jhhI  bona  jhte  debtor?  A  c.us- 
toiii  so  utirciisoiiMble  can  never  siiiicrscdc 
law."  (Janll,  .J.,  in  I'roscott  v.  Ilul)bell,  I 
McA'i.rU,  itl. 

I  "  In  tlii>^  iM>c  the  main  (|Ui'>lii>n  is, 
whclhcr  llic  ;icl~  of  Sliorcy  wen;  williin  tlie 
scoiu!  of  ji  f,'i'ncr;il  <lc--i^'n  to  sham  tlic  prot- 
its  of  the  cnlcrprisc  witli  Matlics, or  whclhcr 
the  Koods  were  obtained  on  his  own  credit, 
or  for  his  own  private  use  and  purpo-es. 
*  *  *  Tlic  plaiiilills,  having  Introlnced 
eviiicncc  Icmling  lo  show  thatsonn^  oi  the 
goods  In  shorey'.s  store  passed  into  Ihe 
hands  of  Mulhos,  and  that  in  being  removed 
from  one  store  to  another  they  were  con- 
veyed by  and  through  a  long  and  circuilinis 
route,  the  defendants  were  not  permitted  by 
the  court  to  show  the  existence  of  a  usage 
or  custom  among  the  merchants  of  I'orts- 
moulli  and  Manchester,  or  elsewhere,  to 
have  their  goods  sent  to  their  stores  by  long 
and  circuitous  routes  when  purchased  tit 
the  stores  of  ncjir  iu'iglil>or.s.  We  think  tlie 
court  properly  rejected  this  kind  of  testi- 
iiioiiy.  Tlie  general  presumption  of  law  on 
this  subject  would  naturally  be  that  iiier- 
chants,  in  the  transporlalioii  of  their  goods, 
will  be  governed  by  their  true  and  essential 
pecuniary  iiilci'csts.  That  route  will  be 
I)ref('rred,  other  things  being  eipial,  which 
is  the  shortest  and  chcapefit,  reiiuirim;  the 
least  expenditure  of  money.  In  general,  a 
custom  of  merchants  must  be  reasonable  in 
itself.  *  *  *  The  hiw  will  not  permit  us 
to  presume  that  the  honest  merchants  and 
business  men  of  any  city  in  our  State  would 
prefer  to  traiisiiort  their  goods  liy  a  long 
and  circuitous  route  Avheii  they  had  an  op- 
portunity to  use  one  more  direct,  of  eipial 
litness  foi'  travel,  and  re(|uiring  a  less  tuitlay 
for  freiglit.  We  think  it  would  be  suspi- 
cious, absurd,  and  unreasonable  to  a-sume 
the  existence  of  such  a  usage,  and  it  would 
be  in  violation  of  the  common  experience  of 
mankind,  as  well  as  the  familiar  maxim  of 


l.iw,  Atl  iiina  <'t  iinjnis.<iliilia  le.c  non  cogit." 
Ni'sniith,  .J.,  ill  .lacolis  v.  shorey,  48  N.  H. 
100. 

-  "  Sanction  this,  and  it  is  made  the  direct 
interest  of  this  class  of  people  to  encourage 
their  dilatory  customers  to  run  up  their 
accounts  with  them,  knowin;;  that  until  the 
time  comes  for  pressing  ;i  settlement,  then' 
accoiMils  will  be  drawing  interest.  When 
the  day  of  settlement  comes,  the  debtor  finds 
himself,  una<'i|Uiiinted  as  he  generally  is 
with  the  operation  of  this  principle,  in  debt 
to  perhaps  double  the  amount  lie  supposed, 
a  judgment  and  niortgnge  is  the  conse 
iiuence,  and  liii.'iiiy  it  ends  in  his  propcitj 
being  -old  for  half  its  value.  To  |)rolect  I  lie 
ignoraui  and  unwary,  public  policy  rcMiuires 
that  courts  of  jiistiise  should  put  the  seal  of 
rcprobiilion  on  such  implied,  unjust,  and 
oppressive  agiecments.  When  there  is  a 
settlenicnt  bclwcen  them,  and  a  promise  to 
pay  interest,  the  intention  of  the  debtor  is 
called  to  the  state  of  the  aiu'onnt.  If  he  it' 
wronged,  it  is  hisown  fault;  he  then  goes  on 
with  his  eyes  open.  Interest,  in  Pennsylva- 
nia, has  already  been  extended  furiher  than 
in  i;iiglaiid,  or  In  most  of  the  States  of  the 
Union,  and  it  is  time  for  us  to  pause  and 
consider  whether  it  has  not  bei'ii  sullicienlly 
extended."  I.'ogcrs,  J.,  in  tiraham  r.  Wil- 
liams, hi  >erg.  &  I{.  2.")7;  10  Am.  Dec.  .'it!!). 

■  Lan(;asler  liank  i'.  Woodward,  IS  Pa.  St. 

■*  "If  sucli  a  custom  does  exist,  it  is  con 
Irary  to  law,  and  ought  not  to  meet  with  tlie 
sanction  of  a  court  of  justice.  The  law 
declares  that  money  received  through  mi-.- 
take  shall  be  reliuidiMl ;  and  this  rule  of  law 
is  founded  in  morality,  which  makes  par!  of 
the  law  of  the  land.  *  *  *  Such  a  custom 
ill  biinking  institutions  may  be  an  evidence 
of  avarice,  but  not  of  the  pi;iclice  of  justice 
among  those  lorncined."  dallatin  c.  IJracl- 
foril,  1  ItiMi,  -lu-.i. 

\\  arliiis     c.    IJowery    Savings    Uank,   5 
Dner,  t>7. 


■.">■  P 


f^l^ 


UNUKASONABLE    USAOKS. 


71 


Carrier  and  Custi>in«!r, 


§  iO.  Samo  — Carrier  and  Customer.  —  A.s  affectins  the  ndatioiis  of  carrier 
and  ciistomiT,  lli(->i'  ii.>a:;i's  liavc  l)i'i  u  (hclared  uiu'ea>i»iiable  ami  void:  A  ii-aui- 
!or  wliarliimcrs  to  aet  as  ajrciit.s  in  acccptin;;,  on  l)ciialf  of  cun-iuiu-cs,  lioods 
-rrivinu  at  the  wliarvcs:  i  a  iisaije  for  tlit-  .•oiisiiinci'  i^f  a  sostl,  wlio  is  also 
I  iir  owner  of  the  caru'o,  to  cliaruie  a  {•.oinini>«.ion  on  tlie  fntijilit  |i:ii(l  l)\  tiiiiisi  if 
to  tlif  captain;  -  a  I'listoiii  llial  an  intcrnii'iliale  carrier,  who  rccciwd  property 
sill)  ecL  to  chaises,  may  deihiet  from  tiie  freiitlil  earned  Ijy  tlie  prior  carrier  the 
\aiiii  of  any  dellciency  i)et\veen  tlie  (|iiantity  delivered  and  that  .stated  in  the 
hill  of  lading,  and  that  tlie  prior  carrier  shall  not  be  allowed  to  show  that  an 
i'lTor  occurred  in  stalinu;  llie  amount  in  the  bill  of  lading;'  a  usatje  of  a  port, 
that  in  order  to  constitnte  a  delivery  of  ,i;oods  by  a  carrier  by  water,  a  re(;eipt 
niii^l  he  Liiven  to  the  earrier  I.  '  l\e  eonsii^nee  or  hlsaj^ent  ;  '  aen^lnm  llial  fridi^ht 
paid  ill  advance  may  not  be  recovercil  back,  even  tlunmh  not  e.uiied;  '  a  ciistoni 
thil  anoiice  piii)lished  in  tliree  newsp.apers  in  a  city,  of  llie  lime  and  idace  of 
lauilii:'.;  LTooils  by  steamboat,  is  such  a  notice  as  places  them  at  the  ri>k  of  the  con- 
siiinee;''  a  (aistom  amonij;  tlie  owners  of  tow-boats  that  the  llrst  eomiiiLC  aloii;;- 
side  of  a  ship,  on  a  si.ufiial  for  steam,  has  an  absolute  towiiiir-con tract;  •  a  '.isai?e 
iciluirinL;'  tho;;'  who  are  in  the  lenal  use  of  tlie  waters  as  a  lii^hway,  to  yield  to 
others  who  are  iisin;^  tlieia  for  an  iinhiwful  purpose:  "*  a  custom  amoiiL;  carriers 
and  shippers  that  a  contract  imide  between  them  to  furnish  and  carry  coal  to  a 
certain  port  for  saK'  iii.iy  lie  thrown  up  by  either,  at  liis  convenience,  no  damaj^e 
to  be  claimed  from  either;'-*  a  usa;;e  of  a  railroad  company  reciuiriujj  claims  for 


1  Till'  Mi(i(lle>u.\,  II   I,a\v  lieh.  iN.  s.)  114. 

'-'  .Jelis  in  r.  I.i'u,  :i  Woodl).  &  M.  ;'.iiS. 

'  ".\ll  ru.-ioins  iini.-l  be  reii.soiiable.  If 
the  one  in  iiue^tiim  were  eonflned  to  vc-liiifc 
in  tliu  iiitermettiiitc  coiisii^iiee  the  same 
power  to  refuse  to  p.'iy  frci^xlit  in  cases  in 
wliic'h  till!  owner  would  be  ju>lilied  in  doing 
so,  It  would  not  oxcood  the  ri'a.--onablo  prov- 
inre  of  ;i  mercantile  tisaifc.  liiil  it  jroe.'! 
very  much  furlhcr  when  it  makcn  the  bill 
of  lading  I'oMchisive  ill  favor  <>{  the  inlcr- 
mediate  earner,  and  allow-s  him  to  make 
dediielions  for  .supposed  (U'rK'.ieneie.s  not 
in  f:K',t  c.\i-tlng,  which  the  owner  himself 
would  not  bo  permillLMl  to  make.  ,\nd  il  is 
s|uMM;dly  unreasonable  if  ;;  ilepiives  the 
I'.airier  of  his  lien,  and  remils  him  to  a  per- 
srnial  responsibility  which  he  never  relied 
on,  uliether  he  is  given  a  remedy  in  all 
cases  against  the  consignor,  or  rei|Ulred  to 
follow  Ihe  money  to  the  hands  of  the  owner, 
who  will  u.sually  re.-ide  at  a  point  distant 
from  the  iilar.e  where  the  e.Kaction  i>  made, 
and  frec|uently  in  a  fnridgii  country."  Coo- 
ley,  (!.  J.,  in  Strong  v.  Grand  Trunk  K.  Co., 
l.i  Mich.  im. 

*  ••  It  is  tinrea.sonable,  because  it  imposes 
on  a  c.irrier  the  burden  of  procuring  an 
act  to  be  done  by  another  person,  the  per- 
formance of  which  he  has  no  power  to  coni- 
Iiel  or  enforce,  or  which,  from  design  or 


ai'cadeut  on  the  part  of  otliers,  it  may  be 
dillicult  or  impossible  for  him  to  cause  to  be 
accomplished.  It  i--  no  answer  to  the  objec- 
tion to  say  that  if  through  no  fault  of  his  own 
the  carrier  (;annot  comply  with  the  usage, 
he  may  then  prove  ilelivery  ol  Iho  property 
in  Mime  other  ni;oiner.  Thisdoe>  not  ndieve 
the  dilliculty,  because  in  the  conlingein^y 
supposed  he  would  be  obliged  to  .-how  the 
exi-tencc  of  facts  Millicienl  to  excuse  a  iion 
compliance  with  the  u-age  before  he  could 
be  allowed  to  prove  by  the  ordinary  legal 
evidence  that  he  had  fallilled  his  i  ontract. 
No  usage  to  which  such  a  cmiseiiuence  at- 
laehi-  can  he  dcemeil  to  be  consistent  with 
the  priuiiple  ticil  no  iinii-  !>'.l  or  dispropor- 
tionate duty  or  burden  .:..!>  L)0  thrown  on 
one  of  the  parlies  to  a  contract  by  local 
usage  or  cuslmn."  Keed  v.  liichardson,  1)8 
Mass.  214. 

■  Kmery  r.  l)UMi),ir,  I  Daly,  4(is. 

'  Kohn  r.  I'ackard,  ;i  La.  •.••.>4 ;  Zi  Am.  Dec. 
I.").!. 

•  <  l.irk  r.  Oitford,  7  La.  ryli. 

•  Ilardi.i'.r  c.  The  .Maverick,  .5  Law  liep. 
lOtJ;  The  '..averick,  1  .Sprague,  'J.'5. 

'■'  "  It  nnlliiies  the  contract  and  subverts 
the  very  objects  for  which  it  was  entered 
into  —  the  carrying  of  the  plaintiffs'  goods 
and  the  benellcial  employment  of  the  de- 
iendaiu's   vessel.    A  contract  which  is  ab- 


Ls',r        ck 


i'-:;!t 


r 
«,  ■ 

.; 

^' 

1 

'i 

1 

.  •  1 


I 

r 


11 


J   ! 


If 
f 


ill 


ON    riiK  itEQUisrnch  to  thkiu  vauoitv. 


L'nr.Msoiiahlc  Usuiii^s. 


losses  to  be  iiiadc  at  tlio  time  the  qiootls  iiiv  ili'Iivcrod,'  or  within  ten  days  there- 
after; -'  a  ciisioin  of  a  railroad  company  tliat  tjefore  a  coiisij^noe  can  obtain  liis 
wlieat  from  tlie  (;oni|)any'.s  bins,  he  mnst  receipt  for  the  ([uantity;  ^  a  custom  of 
a  railroad  company  not  to  be  responsible  for  the  conduct  of  its  a;;ents  in  re^i.inl 
to  tlio  contents  of  chartered  ears,  of  which  they  hold  the  keys;  '  a  us;' "'  of  a 
steamboat  coni|)any  not  to  allow  a  passenirer  to  take  to  his  state-ro  .eh 

baji,!;aa:c  as  he  nniy  require  for  his  personal  use."  And  "no  custom,  if  il  were 
possible  for  such  a  custom  to  grow  up,  could  be  uyheld  as  reasonable  wliirh 
would  justify  a  steamboat  carrier  who  had  j^oods  consiu;ned  to  a  person  at  a 
particular  landini?  on  the  river,  —  where  there  was  a  warehouse  and  a  warehoii-.e- 
keeper,  wlio  usiuilly  received  and  took  care  of  i^ooils  landed  there  for  the  eon- 
siirnee,  — in  puttinjj;  out  such  goods  on  the  river  Imnk,  without  any  protection, 
when  the  landing  had  in  the  meantime  been  broken  up  by  an  inundation,  and 
the  washing  away  of  the  buildings  and  the  removal  of  the  persons  that  consti- 
tuted It  a  landing."  "  In  Dixon  v.  Dunham,''  the  Supreme  Court  of  Illinois  gave 
illustrations  of  usages  of  this  character,  reasonable  and  unreasonable,  respec- 
tively: "A  custom,"  it  is  said,  "must  be  reasonable  in  view  of  the  cir(  ;ini- 
stances.  For  instance,  a  vessel  having  a  single  package  for  a  con^^ignee  in  ilio 
port  of  Chicago,  it  might  be  very  unreasonable  to  require  the  vessel  to  remove 
from  her  usual  dock  where  she  is  accustomed  to  land  and  discharge  her  freight, 
and  a  custom  absolving  her  from  such  duty  might  very  readily  acquire  s  bjlity 
among  all  parties;  wliercAS,  were  she  loaded  with  an  entire  cargo  for  -.on- 

signee,  — as  timber,  or  pig  or  railroad  iron,  —  it  might  be  very  unreasf  'or 

the  captain  to  claim  the  right  to  deliver  the  cargo  at  a  distance  from  the  wharf 
of  the  consignee,  where  he  would  not  only  be  compelled  to  have  it  reshipped  or 
transported  by  land,  but  also  to  pay  wharfage;  and  a  custom  which  would 
secure  that  privilege  to  a  carrier  would  be  likely  to  meet  with  opposition,  if  not 
with  continued  resistance.  *  *  *  Customs  are  instituted  and  admitted  to  pro- 
mote the  interests  and  convenience  of  trade,  under  the  supposition  that  the  slight 
Inconvenience  which  one  class  suffers  by  reason  of  them  is  more  than  counter- 


solute  in  terms  it  makes  conditional;  an 
oblivr.ition  expressly  enjoined  upon  both 
parties  It  nialius  optional  with  either.  Under 
its  application  the  defendant  cannot  reclvon 
with  any  confidence  upon  eniployinL-nt  for 
hiw  vessel,  or  the  plaintiffs  upon  the  receipt 
of  their  goods,  though  they  have  mutually 
entered  into  a  valid  contract  to  secure  both 
these  objects.  Instead  of  subserving  the 
purposes  of  the  parties,  as  disclosed  in  their 
contract,  it  dominates  over  and  controls 
them ;  in  tliie,  it  makes  the  contract  sub- 
ordinate to  the  usage,  and  the  legal  rights 
of  either  party  to  hinge  upon  the  con- 
venience or  caprice  of  the  other.  It  is 
ditlicult  to  understand  how  sucli  a  practice 
could  ever  have  assumed  the  ])roportion8 
necessary  to  give  it  the  cngnomen  of  a  ironi- 
niercial  usage  in  a  commercial  community. 
It  is  les8  dilllcult,  however,  to  understand 
that  it  cuuld  never  have  the  sanction  of 


law."  Dickerson,  J.,  in  Randall  v.  Smith,  fiS 
Me.  105. 

'  Memphis  R.  Co.  v.  Ilolloway,  4  Law  & 
Eq.  Re)).  42"). 

=  Browning  v.  Long  Island  R.  Co.,  2  Duly, 
117. 

I  Christian  v.  St.  Paul,  etc.,  R.  Co.,  iO 
Minn.  21. 

■•  "The  custom,  if  it  exists,  is  a  most 
unreasonable  one.  To  hold  a  key,  ami  yi't 
not  bo  accountable  for  what  is  taken  out  if 
a  car,  would  be  contrary  to  all  sense  nf 
right."  Jackson,  .J.,  in  Central  U.  Co.  >•. 
Anderson,  .iS  Ga.  393.  ISut  a  custom  to  crivi 
preference  to  the  delivery  of  perisliaiile 
property  over  other  freight  is  reasoualjle. 
Peet  I'.  (Miicago,  etc.,  R.  Co.,  20  Wis.  5SM. 

•'•  Mackliii  )'.  New  .Jersey  Steamboat  Co., 
7  Abb.  I'r.  (N.  B.)  229. 

«  Stone  V.  Rice,  58  Ala.  95. 

1  U  111.  324. 


I  NHKASONABLE    tSAOK^. 


n 


InsiiraiKf  —  Milster  and  S(r\iiiit. 


biiliincod  bv  the  hciu'lits  to  iiiiotlur  da--;,  .■md  Unit  the  indiiniiK  nis  thus  offered 
coiupeoHiiti  the  lesser  loss  by  I  lie  reduced  eharjrcs  which  are  tlierihy  induced." 

§41.  Samo  -Insurance.  —  In  the  law  of  iiisurjiiice.  these  have  been  held 
urireasoii;iiil<',  vi/.:  A  nsinje  of  inuriiic  eoMipanifs  to  iv  <|uir<'  a  survey  of  the 
"oods  dauia;r<'il  !>>  the  porl-wardt'us.  as  a  pnliniinary  pioof  of  ihi'  loss; '  and  a 
usajrc  of  the  sanie  class  of  insurers  to  pay  only  two-thirds  of  the  gross  freight 
on  a  total  loss.' 


.(J  I  m 


.ifl;-: 


§42.  Same  — Master  ^nd  9  rvant — Employer  and  Employee.  —  The  fol- 
lowiiiir  (iistoiiis  li;i\  f  also  joeii  held  unreasonable :  .\  custoui  that  if  a  female 
slavr,  Jiin-d  by  the  month  or  week  should  be  eoiiliucd  and  delivere<l  of  a  child 
duriii:.'  the  term,  the  owner  should  pay  a  certain  sum  to  the  hirer;''  a  custom 
anioiiiT  wholesale  dealers  .illowing  their  salesmen  jiay  for  time  lost  by  si(;kness, 
without  re^rard  to  tlu;  lensth;'  a  custom  for  sawyers  to  ship  the  lumber  in- 
trusted to  them,  and  converted  into  logs,  to  lumber  factors,  to  be  sold  by  them;  '• 
a  custom  that  a  person  employed  to  cut  staves  from  another's  bolts  has  a  right 
to  take  to  his  own  use  the  clippings,  corner-pieces,  and  culls,  without  the  con- 
sent of  the  owner;"  a  usage  of •  plasterers  to  charge  not  only  for  the  space 
covered,  hut  for  one-half  of  the  surface  occupied  by  openings." 


15  >!l         i}  i) 


.  ii»Hn 


a  most 
|,  anil  yt't 

:\\  out  if 
[sense  ii{ 
lit.  Co.  '•. 
In  to  pi^" 

i-risUiilile 

lisonalili;. 

,594. 

boat  Co., 


1  ItJiiikin  r.  American  Ins.  Co..  1  Hall.  619. 
Mi',(ireg()r  c.  Insurance  Co.,  1  Wash.  C. 
Ct.  w. 

■I  Cooper  V.  Purvis,  1  Jones  L.  141. 

*  .Sweet  r.  I.o.ich. «  Hraihv.  212. 

^  "The  eustoui  tliu.«  set  up  is  clearly  bad, 
and  forms  no  ju^tillcation  for  the  acts  al- 
Icgeil  Id  have  heen  clone  uiicler  its  aulhor- 
ily.  A  custom  lliat  those  who  have  alien 
for  work  uiaj'  sell  the  properly  on  which  it 
rests,  after  ,1  demaiid  of  the  deht  and  a  rea- 
sonable notice  of  I  he  time  and  place  of  sale, 
might  perhaps  be  good,  although  I  certainly 
do  not  iiiiderl.ikc  to  say  that  it  would  be  >o; 
but  a  custom  under  which  no  njan  in  t,y- 
coining  could  sen<l  his  logs  to  a  saw-mill 
witlKiut  the  risk  of  having  them  sent  for 
sale  to  a  distance,  without  consulting  his 
wishes  or  giving  him  an  opporlunity  to  pay 
wh.'it  he  owed  and  resume  possession  of  the 
property,  is  too  clearly  vicious  to  justify  the 
consumpiioi)  of  time  in  pointing  out  the 
many  particulars  in  which  it  >ins  against 
reason  as  well  as  common  right  and  jus- 
tice." Hare, .!.,  in  I'.ean  c.  Holion, :!  I'hila.  87. 
■  "Ab  a  custom,  it  <;annot  be  upheld. 
Customs  must  be  reasonable,  and  not  con- 
trary to  the  general  principles  of  law.  A 
custom  which  is  unreasonable  and  in  oppo- 
sition to  the  general  principles  of  law  Is 
void.  *  »  *  The  property  ni  the  culls  and 
corner-pieces  was  vested  in  the  defendant. 
They  were  of  value,  a.s  appears  by  the  plain- 
tiffs' own  showing,  and  were  an  article  of 


merchandise.  The  defendant  might  have 
parted  with  them  by  contra<'t.  Perhaps  a 
license  to  taki;  I  hem  might  be  inferred  from 
their  having  been  suffered  to  remain  un- 
claimed for  a  KulIIcient  length  of  time  in  the 
pUinlitfs'  mill-yard.  Hut  a  custom  for  the 
cutter  to  take  and  appropriate  them  to  bis 
own  use,  without  Ilie  agreement  orconsi'ut 
of  the  owner,  cannot  be  sustained.  .'*uch  a 
cu>toni  is  not  only  not  in  harmony  with  law, 
but  manifestly  against  public  policy.  To 
allow  a  meebanic  or  artisan  who  works  up 
tlie  materials  of  another  to  keep  so  much  of 
such  material  as  is  not  used  for  tlie  benellt 
of  the  owner  of  the  material  is  to  array 
his  interests  in  direct  opposition  to  those  of 
his  employer.  This  is  strongly  illustrated 
in  the  case  of  the  culls.  It  appears  that  in 
this  instance  the  plaintiffs  iind  their  eni- 
\doyees  culled  the  defendant's  bolts,  and 
such  we  understand  from  the  evidence  to 
bo  the  general  practi<'e.  If  the  culler  is  to 
bo  entitled  to  all  the  bulls  which  are  deter- 
mined by  him  to  be  unlit  for  staves,  he  is 
under  a  very  direct  tempiation  to  cull  in  a 
careless,  not  to  say  fraudulent  manner,  so  as 
to  increase  his  own  pro  lit  at  the  sac.riflce  of 
the  interest  of  his  employer,  such  a  custom, 
as  a  custom  binding  \ipon  the  owner  of  the 
property,  is  unreasonably  c.ontrary  to  public 
policy,  and  cannot  have  the  sanction  of 
law."  Talcott,  J.,  in  Wadley  v.  Davis,  63 
Itarb.  rm. 

'  "  The  )iretended  usapi'of  the  plasterers 


itip^ 


■m 


u 

I 

M 


74 


OiN    THE    REQUliSlTES    TO    THEIR   VALIDITY. 


UnrousoiKible  Usa-ios. 


:  :i 


il    ■ 


,     1 1      ■ 


§  43.  Same  —  Public  Officers.  —  Likewisa,  these  customs  are  adjudged  unrea- 
sonable, viz.:  A  cu>toin  for  a  flour  inspector,  who,  by  statute,  is  to  receive  a 
specitlod  compensation  in  money,  to  take  to  his  own  use  the  Hour  drawn  from 
tlie  barrel  in  the  process  of  inspection,  called  the  "draught  flour,"  as  an  addition- 
al compensation  or  penniisite  ; '  a  usage  of  governineut  otflcors  to  accept  bills 
without  consideration,  or  to  pledge  the  credit  of  tlie  nation  as  surety  for,  or  the 
accommodation  of  a  cojitractor;  -  a  custom  for  holders  of  setthMnents  and  pre- 
emptions of  land  to  give  one-half  to  anotlu^r  for  surveying,  obtaining  preemp- 
tion-warrants, and  nayiug  all  expenses  for  carrying  the  claims  to  a  gnmt;''  a 
custom,  in  making  surveys  for  locations  of  government  land  granted  to  a  settler, 
to  include  more  land  than  the  warrant  actually  called  for.* 


in  tlie  iiresciit  instance  is  unreasonable  and 
l)ad  in  itself.  Td  (-liurgo  an  employer  with 
materials  never  ruceived,  is  tlie  lieiglit  of 
injustice."  Jonlan  v.  Mereclilh,  ;i  Veates, 
;il8.    ItiU  see  Walls  v.  Bailey,  40  N.  Y.  464. 

'  "  Sucli  a  custom,  wfien  invoked  for  the 
benelU  of  ;i  public  functionary  by  transfer- 
ring to  liini  a  portion  of  tlie  goods  of  the 
citizen,  Willi  wliich  he  is  called  upon  to 
(le;il  in  the  discharge  of  his  ofHce,  by  way 
of  ailditioiiiil  compensation  or  perquisite, 
over  and  above  wliut  the  law  expressly  pro- 
vides, would  be  bad,  as  being  unreasonable, 
uinjust,  and  contrary  to  the  policy  of  our 
laWs.  It  would  he  unjust  and  unreasonable 
tUat  a  public  olUi'cr,  having  a  epecitled  duty 
to  perform  iu  relation  to  the  property  of 
othei's  for  a  prescribed  fee,  should  by  the 
discharge  of  th;it  duty  aciiiiirc  a  right  not 
only  to  the  fee  allowed,  Itul  also  to  a  part  of 
the  property  itself.  It  thus  makes  him  tlie 
sole  juilge  of  tlie  compensation  which  he 
sliall  receive.  There  is  nut  even  the  pre- 
tence of  a  contract,  which  might  be  said  to 
bi'  iniiile  Willi  reference  to  the  custom.  The 
manufacturer  who  designs  his  flour  for  ship- 
ment has  no  choice  in  regard  to  the  inspec- 
tion. He  is  re(|iiired  by  law  to  have  such 
flour  insiiccted,  and  is  subject  to  a  iieavy 
]ienalty  il  ho  shall  export  or  ship  it  williout 
such  inspection.  He  pays  the  fee  because 
reipiired  by  law  to  do  so,  but  in  no  sense 
docs  he  stand  in  the  relation  of  acontracting 
piiiiy  to  the  inspector.  *  *  ♦  It  is  but  a 
in'titio  /iriiiciini  lo  .  :iy  that  the  insiiector  may 
appinpriMte  the  (li'mifTlit  Hour  to  his  own  use 
because  he  may  destroy  it  or  throw  it  away. 
If  It  bo  conceded  that  to  inspect  ineana 
more  than  to  make  mere  ocular  exauiina- 
tioiis.and  that  the  inspector  is  aullKO-i/.ed 
to  baUe  a  portion  of  the  flour  into  bread, 
or  subject  it  to  a  clicniical  test,  still  that 
would  not  aullmri/.e  hiin  to  take  away  iniy 
more  than  is  necessary  for  that  ptiriiove,  nor 
even  that  for  his  own  use  and  benellt.    Tak- 


ing away  the  draught  flour  is  no  part  of  the 
inspection,  for  that  may  be  made  whether 
the  inspector  appro])riates  it  to  himself  or 
restores  it  to  the  owner.  The  iiracli  e  of 
millers  to  take  toll  for  grinding  gives  no 
countenance  to  this  custom.  The  cases  arc 
in  no  respect  parallel.  The  shippcn-  of  flour 
has  no  option;  he  must  liavt^  his  flour  in- 
spected and  pay  the  fee-,,  witleiut  .inytliitig 
in  the  nature  of  a  contract  between  himself 
and  the  inspector.  The  owner  of  grain  may 
or  may  not  have  it  ground,  at  his  |ileusure; 
and  if  lie  does,  it  is  a  matter  of  ..ontract 
between  himself  and  the  miller  that  the  toll 
is  yielded.  They  may  agree  that  the  com- 
pensation for  grinding  shall  be  in  money,  or 
other  thing  instead.  Nor  is  there  any  real 
force  in  the  suggestion,  however  [jlaiisible  it 
may  seem,  that  the  inspector  may  keep  the 
draught  flour  for  the  purpose  of  vindicating 
his  ju<lgrnent  if  he  should  be  sued  for  a  false 
brand.  It  is  inipossible  to  believe  that  such 
a  motive  could  h.-ive  been  the  origin  of  this 
custom.  No  case,  1  apprehend,  has  ever 
occurred  in  whi(;li  sueli  an  iiisirumei.t  of 
evidence  has  been  resorted  to,  nor  is  it  at  all 
likely  that  evi;r  the  flour  drawn  by  an 
inspector  was  retained  for  any  such  pur- 
pose. In  point  of  fact,  the  practii'.e  has  been 
universal  for  the  inspectors  to  mix  the  11  >nr 
Uius  drawn  in  a  e.oinmon  bulk,  and  to  sell  or- 
otherwise  dispone  of  it.  .Vnd,  moreover.  ;lu' 
gi^t  of  any  action  agaiiist  an  ins|n'cior  for  a 
fMlse  brand  would  be  the  honesty,  .iiid  n;it 
llie  absolute  correctness  of  the  juilgnuMil 
which  be  had  pronounced."  I<ee,  J.,  :ii 
Dclaplane  r.  Crenshaw.  IT)  (iralt.  -iM. 

■i  I'lerce  v.  Ignite,!  ."^tates,  1  (!t.  of  t;i.  2'.i(). 

■  Carr  c.  t'allaghan,:i  I, lit.  ;>(2;  Walkins  »■. 
Eastin,  I  A.  K.  Marsh.  4().>;  IJodley  c.  Craig, 
1  H.  Mon.  77. 

<  "  Is  this  oretended  custom  reasonabley 
If  it  be  reasonable  that  a  man  to  whom  llu) 
governnienl  makes  a  donation  of  o.ic  tlioii- 
sand  acres  ol  land,  and  '^utfershim  l.i  loc.iie 


i^ 


I  .\UEASO.\A  Jl.K    LSAOKS. 


75 


>d  unroa- 
receive  u 
wii  from 
adcUtion- 
:ept  bills 
or,  or  the 
and  pre- 
;  prceinp- 
grnnt; '  a 
)  a  settler, 


part  of  the 
le  whetlier 
hinis^etf  ur 
l)r;ifli  e  i>( 
fi;  gives   no 
t!  case.s  aro 
per  of  Hour 
i-i  flour  in- 
ul  ;ii>y"'i'>g 
eon  liiiusi!ll 
f  gniin  may 
IS  pli-aMii'f , 
of  ooiitract 
Uiat  llKi  loll 
U  the  com- 
11  money,  or 
I'l!  any  real 
plaiisible  it 
[ly  keep  the 
vindicating 
|(l  for  a  false 
0  that  such 
•igin  of  this 
|l,  has  ever 
uinuei.l  oi 
ir  is  it  at  all 
\vn    by    an 
such  pur- 
Ice  has  beoTi 
|i\  the  I!  'Hi- 
ll to  sell  or 
reovei-.  I  lie 
,i'c(.ii-  lor  a 
ly,  iiiid  not 
!   ju.l;;iiieiil 
ll.ee,   J.,    ill 
4.")(). 
lof  01.  'I'M). 

WalUiiis  V. 
ley  V.  Craig, 

l-easonable? 
whom  the 
o-,ie  Ihoii- 

liia  I  '  loiMie 


Principal  and  Agent. 


vn\ 


^44.  Same  — Principal  and  Agent.  —  Many  usaires  affecting  the  relation  of 
itrincipal  and  agoiil  iiave  been  declared  void  for  unreasGnabieness  —  as,  for 
I'vainpie,  a  (•iisIdih  that  a  man,  without  any  authority  from  the  owner  of  lands, 
and  without  his  coii^ml  or  knowledge,  and  without  kuowlnf;  whether  he  wishes 
to  sell  or  not,  may  di-pose  of  them  on  the  ordinary  terms,  and  by  so  doing  bind 
the  owner; '  a  usage  among  owners  of  vessels  to  accept  all  bills  of  their  mastcr.s 
for  supplies  furnished  abroad;''  a  custom  that  the  master  of  a  vessel,  as  such, 
may  purchase  a  cariio  on  account  of  the  owners,  without  their  authority, '  or  may 
have  the  right  to  sell  the  vessels  without  authority  from  the  owners;  *  a  usage 
for  a  broker,  employed  to  purchase  stock,  to  buy  the  slock  for  himself,  without 
his  priiicipars  knowledge;  '  a  custom  that  au  agent  may  sell  tiie  proi>erty  of  his 
principal  before  he  is  Instructed  to  do  so,  and  on  demand  of  the  property  back, 
may  tender  iiim  similar  articles  in  their  stead;  '  a  usage  of  agents.  In  collecting 
drafts  for  absent  parties,  to  surrender  them  to  the  ilrawees  at  maturity,  and  to 
t,ik<'  in  exehau'.re  their  cliecks  upou  banks;  ^  a  usage  of  brokers  of  tanned  skins 
to  insert  in  the  iiU'iuorauduin  of  sale,  unless  forbidden  by  the  veuihjr,  aud  the 


it  liimself,  .-.lioulil,  instead  of  the  one  thou- 
haiid  aero,  apiiropriate  to  himself  twelve 
or  lifteiMi  hundred  acres,  then  this  pre- 
teiideil  custom  is  reasonable.  Uut  it  by 
Kuch  eoiuliict  he  commits  a  fraud  upon  the 
giiv(Miiiiii'iil  .111(1  upon  other  individuals  in 
till'  Haiiic  .sJliiMtl'iii  as  liimself,  it  is  unrea- 
sonable, ;iiid  oujrht  not  to  bo  sanctioned." 
Illicliciii'k,  J.,  ill  Huston  v.  McArlhur,  7 
Oliio,  70. 

(arr  c.  Callaghan,  3  l-itt.  37;:. 

'"I'lial  usiigi!  cannot  be  voa-onahle  which 
puts  al  liazarii  the  property  of  the  owners  at 
tlii^  ple,i>iire  of  the  niasier,  liv  making  tliem 
re.-poiisible,  as  acceptors,  on  bills  dr.iwii  by 
hiiii.iind  which  li;ive  been  negotiated  on  the 
aw.-iimptioii  thai  the  sums  were  needed  for 
tuipplies  or  repairs;  and  no  evil  can  flow 
from  rejecting  sucli  a  usage,  bec.in-e  owners 
who  have  coiuldeiice  in  the  jiiilu'neiit  and 
discretion,  as  well  as  llic  integrity  of  their 
shipiiiasii'rs  can  give  lliem,  at  llieir  pleas- 
ure, a  liiiiiled  aiitlinrity  to  draw,  w  liieli  will 
tiiriiish  tlieiii  with  cri'dit,  and  jirolect  lliein 
from  imposition."  Hubbard,  J.,  in  IJoweu 
I'.  Stoddard,  10  .Mete.  ;iT.'). 

■  "  If  the  owners  have  permitted  the  mas- 
ter t  )  purchase  on  their  account,  or  have 
ratilleil  .such  acts  when  they  became  known 
I"  tliein,  they  would  by  .such  a  course  of 
■le:iliiig  Inld  him  dui  ;is  their  agent,  author- 
ize 1  to  pe,  i:i.i-e,aiul  they  would  bebouinl  by 
his  acts.  Uut  the  shoplieeper.s  iu  a  village 
nili^dit  as  well  uniltn-take  to  sot  u))  a  usage  to 
trust  every  man's  serv.iiit  to  contract  debts 
for  hi8  master  without  autliority,  as  the 
dealers  in  lime,  or  any  other  article,  in  a 
parliciil.ar  place,  a  u-age  to  sell  to  masters 
of  ves.sels  Willi  Hit  authority  from  the  own- 


ers, and  thereby  bind  them."    .Shepley,  J. 
in  Ilewett  v.  IJiick,  17  .Me.  1 17. 

■'  "  That  masters  should  have  right,  merely 
as  masters,  to  sell  the  properiy  of  their 
owners  in  the  vessels  they  coiniii.unl,  with- 
out authority  from  their  owner-,  would  be 
most  unjust  and  iiniioliiic ;  au'l  a:iy  jirac- 
tice.-.  of  that  kind  ought  to  be  repudiated 
as  inlipiitous  and  absurd,  rather  than  to  be 
improved  as  precedents  to  establish  a  rule." 
Uenshaw  c.  Clark,  2  Koot,  lOl. 

■'  I'ickeriiig  r.  Deinerrltt,  100  Mass.  421. 

'■'  "  The  custom  alleged,  if  it  existed,  would 
be  contrary  to  law  .md  good  moi'als,  and 
could  not  be  recognized  by  a  (;ourt  of  justice. 
I'lider  it  the  principal,  in  c;ase  of  hi-  agent's 
failure,  c.uild  no  I  mger  identify  his  prop- 
erty, aud  his  right  to  tiike  it  back  in  kind 
wo  lid  in  every  case  be  '  '".'ited.  After  the 
sale  by  the  factor  of  the  property  of  his 
principal,  in  violation  of  orders,  his  interest 
beeouies  adver-e  to  that  of  his  em;iloyer. 
Having  to  return  the  property  in  kind,  he 
has  an  intore-t  in  the  fall  of  the  market,  and 
is  .subjected  to  the  temptation  of  as>istiiigto 
bring  it  about,  in  direct  opposition  of  his 
iluty  to  the  principal  who  employs  him." 
Ko  ;,.!.,  in  Foley  r.  liell,  (!  Ka.  Aii.7i;o. 

"It  is  undoiilitedly  true  that  men  who 
kee|)  bank  aceoinils  aro  iiei  uslomi^d  to  give 
.  liciUs  f((r  their  debts,  aiel  in  mo-t  eases 
their  standing  is  such  that  these  checks  are 
tiikeii  by  their  neighbors  as  readily  as  cash. 
This  may  make  a  cominon  jiractice  among 
men  who  are  dealing  on  their  own  account 
in  respect  to  such  dealings;  but  sueli  ft 
practice  falls  short  of  a  usage  .'ipplyiiig  to 
the  eoUection  of  drafts  for  absent  parties. 
.\Md  iL  IS  not  a  reasonable  usage  that  one 


I    ' 


^,- 


M 


I 


7H 


ON    THK    REliUlSrrKS    TO    TIIKIK    VAI.IDITY. 


Unroasoniible  Usaj'iis. 


buyer  has  an  opportuniiy  for  tixamination,  u  warranty  of  nit:rcliaiital)lc  iinality 
a  custom  of  public  warolionse-kocpors  in  London  to  liave  a  fioncral  lien  upon  all 
Soods  from  time  to  time  stored  in  their  warehouses  for  and  in  the  name  of  the 
raerchants  or  other  persons  by  whom  sucii  public  warehouseincn"  are  iTtained  or 
employed,  for  all  moneys,  or  any  balance  thereof,  due  from  such  merchants  or 
other  persons  to  such  warehousemen  for  or  on  account  of  advances  or  expenses 
which  such  warehousemen  should  have  made,  or  been  put  to,  in  or  about  the 
payment  of  duties  or  of  customs  on  jzoods  consii^ned  to  them  from  abroad,  or 
the  payment  of  freight  or  other  charjies  for  the  conveyance  of  such  j^oods  to  the 
port  of  London,  or  the  entering;,  landinjr,  and  warehousinj;  such  <;oods;2  a 
custom  that  a  person  employed  by  a  comiiaiiy  to  devote  his  time  to  its  business, 
for  its  exclusive  profit,  should  be  allowed  to  enijaji'e  in  a  similar  business  on  his 
own  account;''  a  custom  for  ship-brokers  to  receive  a  commission  from  the 
seller  of  a  vessel  when  they  introduce  the  purchaser  to  him,  and  are  not  otherwise 
employed  in  the  transaction;*  a  custom  for  an  a!;;eiit  to  ri'ciive  compensation 
from  Ijoth  buyer  and  seller;  ^  a  custom  under  which  an  insurance  assent  receives 
from  the  company  commissions  on  the  renewal  premiums  on  all  policies  obtained 


who  collects  a  draft  for  an  absent  imrty 
should  be  alloweil  to  j^ive  it  up  to  the 
drawee,  and  sanrilice  the  claim  which  the 
owner  may  have  on  prior  pjirlies,  upon  the 
mere  receipt  of  a  clieck,  whicli  may  turn 
out  to  be  worthless."  Cha))nian,  C.  J.,  in 
Whitney  v.  Ksson,  09  Mass.  :?08. 

'  "  IJy  the  terms  of  the  nsage,  the  authority 
of  the  broker  to  give  a  warranty  is  ini|)lie(l, 
wliolly  irrespective  of  the  nature  :iiu1  condi- 
tion of  the  particular  property  which  may 
be  the  subject  of  tlie  contract,  witliout  any 
regard  to  the  facts  and  circumstances  under 
which  the  sale  is  authorized  to  be  made. 
If  this  usage  is  upheld,  tlien  a  broker  may 
give  a  warranty  l)inding  on  his  principal, 
although  the  latter  \nay  have  authorized 
goods  to  be  sold,  not  for  a  sound  price,  but 
at  a  rate  far  below  the  market  value  of  a 
merchantal)U!  article;  so,  ho  may  be  hold 
liable  on  his  l)roker's  warranty  although  at 
the  time  of  the  sale  he  may  never  have  seen 
the  goods,  and  knew  nothing  of  their  condi- 
tion or  value,  or  even  when  he  knew  that 
tliey  were  of  an  inferior  article,  or  had  been 
greatly  damaged;  and  this,  too,  where  the 
vendee  may  liave  seen  and  examined  the 
article,  and  had  full  opportunity  to  become 
accjuaintcd  with  its  cpiality  and  condition. 
The  dangerous  consc'iuences  which  would 
follow  if  such  usages  were  permitted  to 
interfere  with  the  operation  of  established 
legal  princiiiles,  and  to  control  the  rights 
and  obligations  of  parties  under  contracts, 
are  too  plain  and  palpable  to  allow  us  to 
hesitate  in  rejecting  thorn  aa  unreasonable 


and  invalid."    IJigelow,  C.  J.,  in    Dodil   v. 
Farlow,  11  Allen,  .tiO. 

-  "The  general  lien  claimed  is  not  con- 
fined to  goods  I  he  property  of  the  i)ers(iii 
who  employed  <'r  retained  the  warehouse 
keeper,  but  e.xtcnids  to  all  goods  which  arc 
put  by  liim,  in  bis  own  name,  into  the  liaii'ls 
of  a  wareliouse-keeper,  whether  his  prop 
erty  or  not.  The  custom  set  up  in  the  pleit, 
if  supportable,  would  make  the  goods  of  a 
foreign  merchant  wliich  have  been  C(  ii 
signed  by  him  to  a  l-ondon  factor  for  sale, 
and  by  him  put  into  the  warehouse  of  the 
warehouse-keeper  for  safe  custody,  liatili' 
toaiM'ivate  debt  of  the  factor  for  expen^c< 
incuni  1  in  respect  of  other  goods  of  third 
persons,  which  liad  been  in  his  hands  at 
former  times,  for  charges  contracted  upon 
such  goods  during  any  antecedent  period 
of  time,  and  that  to  an  unlimited  extern. 
It  appears  to  us  that  such  a  cnstimi  is  at 
once  nnreasonablo  and  unju'^t,  and  there- 
fore bad  in  law.  It  is  a  custom  which  is 
obviously  prejudicial  in  a  direct  manner  and 
in  a  very  high  degree  to  foreign  trade;  for 
no  foreign  merchant  would  be  content  to 
consign  his  goods  to  this  eountiy  for  salu 
if  they  could  be  made  liable,  whilst  ware- 
housed for  the  purpose  of  <'uslody.  to  sati^f," 
a  debt  alrcadydue  from  the  factor  in  respect 
of  other  goods."  Tindal,  < '.  .1.,  in  I.eucknrt 
i>.  Cooper,  ;i  Scott,  521  (ovin'ruling  dictum  in 
r^euckarty.  Cooper,  7  Car.  &  1*.  11!0. 

'  Stoney  v.  Farmers'  Tranii>.  Co.,  17  Hun. 
.•iSlt. 

I  Winsori).  Dillaway,  4  Mete. '221. 

^  See  notes  to  Itaisin  f.  Clark,  post,  Chap. V'' 


INKEASONARLE    USAGES. 


77 


niiistrations. 


bv  liiin  for  three  years  after  the  termination  of  his  ensia-ieineiit; '  a  custom 
eiititlinsi  a  \vliartinu;iT  to  deiiver  i^oods,  witli  credit  for  the  freight,  without  incur- 
riiiL'  any  responsibility,  and  ontitiins  him  to  be  regarded  as  still  continuing  the 
forwarder's  agent  to  receive  the  amount.'^ 

§45.  Same  —  MiscellaneouB.  —  Various  other  usages  have  been  adjudged 
invalid  bv  the  courts  on  account  of  tlieir  unreasonableness,  as  follows:  A  cus- 
tom to  use  and  imitate  the  trade-marks  of  foreigners  with  impunity;  ^  a  custom 
of  pnhli-hers  of  newspapers  to  insert  advertisements  sent  to  them  without 
express  directions  as  to  tlie  number  of  insertions,  until  their  publication  is  ex- 
pressly conntennandeil,  even  after  the  object  of  the  advertisement  has  ceased, 
and  that  fact  is  apparent  on  its  face;*  a  custom  to  mine  coal  without  leaving 
pillars  or  posts  to  support  tlie  surface  ;5  a  custom  on  the  Connecticut  River  that 
when  any  person  clears  a  place  for  scine-tlshing,  he  holds  it  against  tlie  world 
during  the  (Ishing-scason; "  a  custom  of  the  owners  of  mines  to  dispose  of  water 
pumped  therefrom,  by  allowing  it  to  flow  into  the  adjacent  natural  water- 
courses, even  though  it  polluted  the  streams  of  adjoining  proprietors;'  a  cus- 
tom that  the  outgoing  tenant  of  a  farm  shall  look  exclusively  to  the  incoming 
tenant,  when  there  is  one,  and  not  to  the  landlord,  for  compensation  for  seeds, 
acts  of  husbandry,  tillage,  etc.* 


m 


i 


m 


1  "Tlin  custom  does  not  appear  to  be 
rensoniibio.  Wu  would  scari'i'ly  suppose 
Unit  sui'li  power  over  tlie  funds  of  llif  com- 
t)aMy  would  be  left,  for  a  period  of  three 
year.j  after  the  termination  of  the  agency,  in 
the  hands  of  one  who,  at  the  time,  would  not 
be  iiudiM- bond."  llines,  J.,  in  ('MsUeiiKin  r. 
SouihiTM  Muliiiil  ]ii8.  t!o.,  H  Bu.-Ii,  I'.IT. 

-"I  (|ucsti(>ii  whether  any  such  cu-ioin 
could  hi'  riTojtiii/.ed  in  law."  Mdcaulay,  f!. 
J.,  in  Toirance  v,  Hayes,  'i  Upper  Canada  O. 
1'.  ;j;j8. 

'  Taylor  u.  Carpenter,  2  Woodl).  &  M.  1. 

<  Thomas  /•.  (irivcs,  1  .Mdl  Const.  .'M. 

5  Columan  r.  Chadwick,  HO  I'a.  St.  81.  And 
see  Joucs  r.  Wafrner,  (ifi  I'a.  St.  430;  Horner 
r.  Wat.son,  Tit  I'a.  St.  'J42. 

'■  Kreary  v.  Cooke,  11  Mass.  ■18S.  And  see 
I.ufkiu  -•,  llaski-ll,:!  I'Ick.  lifxi. 

'  .\  coal  cimipaiiy  had  pumped  from  its 
mines  a  quiintit>  of  water  which  polluted  a 
Iirevioiisly  puri^  .-(ream  of  the  idaintilF, 
into  whii'h  it  found  its  way.  In  an  action 
Ihcrcfor  it  was  conlendc  I  by  the  ilefciidaiil 
thai  till'  customary  mode  of  dispo-iiii;-  of 
water  pumped  from  tlii'  mines  in  that  rcirion 
had  always  been  to  allow  it  to  How  into  the 
adjacent  natural  watiM-courses;  and  proof 
of  such  a  custom  was  otlered.  Said  (iordon, 
J. :  "  More  fatal  still  to  the  defendant's  pre- 
timslons  is  the  fact  that  the  effort  is  thus  to 
liistify  the  ilisiurbamie  of  private  property 
lor  (hi!  advancement  of  the  private  interests 
of  the  defendant  corporation;  and  that  not 


under  the  plea  of  an  ancient  ouistomary  use, 
ari,siiig-  before  the  plaintiff  acquired  title,  but 
of  a  fjeneral  custom  which  would  authorize 
the  lu-esent  injury  or  destruction  of  the 
rights  of  riparian  owners.  But  a  custom 
sucdi  as  this  would  not  only  be  unreason- 
able, but  also  unlawful,  and  therefore  worth- 
less. It  it'  urged  that  mining'  cannot  be  car- 
ried on  without  this  out  How  of  aciduous 
water,  hence  of  nene.ssity  the  neigliljoring 
sir(!anis  must  be  polluted.  This  is  true  ;  and 
it  is  also  true  that  (;oal- mining  would  come 
to  nothing  withi>ut  roads  iii)on  which  to 
transport  the  coal  after  it  is  mined;  there- 
fore roiids  are  necessary;  but  itdoes  not  fol- 
low that  for  such  purpose  the  land  of  an 
adjacent  owner  may  be  taken,  or  his  right  of 
way  encumbered,  without  compimsatioii." 
rennsylvania  Oial  Co.  v.  .Sanderson  (.'>up. 
Ct.  Pa.,  May,  ISSO). 

"  "The  custom  here  found  to  exist,  in  point 
of  fact,  is  to  the  effect  that  the  incoming 
tenant,  if  there  be  one,  is  the  only  person 
litiblu  to  compensate  the  outgoing  tenant; 
the  custom  as  found  exempts  the  landlord 
from  liability  altogiither.  Such  a  custom 
will  be  found, on  examination,  to  involve  the 
following  consequences:  1.  That  the  out- 
going tenant  has  imposed  upon  him,  for 
his  sole  and  exclusive  debtor,  a  person  in 
whose  selection  he  has  no  choice,  and  with 
whom  he  has  made  no  contract  at  all. 
2.  That  the  incoming  tenant  has  to  make 
compensation  to  the  outgoing  tenant  irre- 


;   ;  n  If 

MS 


!fl 


7« 


ON   THE    REQUISITES    TO   THEIR   VALIDITY. 


The  Habit  of  an  Individual. 


Ill  .t 


i  1 


1  "'Mt 


1;^- 


§  4(i.  The  Custom  of  a  particular  Person  or  the  Habit  of  an  Individual. — 
We  come  now  to  tlie  tliird  and  last  of  the  particular  customs  wliich  are  tlie  sub- 
ject of  this  treatise,  viz. :  the  custom  of  a  i)articular  person  or  the  habit  of  an 
individual.  If  the  memory  of  a  witness  is  defective  concerning  an  act  wliich  it 
Is  of  importance  to  prove  as  having  occurred  at  a  particular  time,  or  under  cer- 
tain circumstances,  it  would  seem  that  liis  custom  to  do  that  act  at  the  time  or 
under  the  circumstances  alleged  should  be  of  weight  in  raising  an  inference  that 
the  act  was  then  performed,  and  evidence  of  the  habit  ought  therefore  to  be 
allowed.  In  the  progress  of  a  trial,  for  example,  it  is  desired  to  prove  that  A., 
at  eleven  o'clock  on  the  night  of  January  1,  1880,  was  in  bed.  A.  cainiot  swear 
positively  that  he  was  in  bed  at  that  hour  on  that  particular  night;  but  A.  is  a  man 
of  correct  and  methodical  habits,  and  he  is  willing  to  swear  that  it  has  been  his 
universal  custom,  to  which  he  cannot  recollect  an  exception,  to  retire  at  ten 
p.  M.  It  is  obvious  that  tiiis  would  tend  to  satisfy  the  ordinary  mind  that  A.  wa-- 
in  bed  at  the  hour  named.  Tlierefore,  it  is  apprehended  that  such  testimony 
would  not  be  rejected  by  the  courts ;  it  has  been  spoken  of  in  one  case  as  "  per- 
suasive and  legitimate  supporting  evidence."  In  Schoneman  v.Fegley,^  decided 
by  the   Supreme  Court  of  Pennsylvania  in    1850,  a  witness  testified    that   he 


spective  of  the  purposes  for  which  he  (the 
incoming  tenant)  may  work  the  laixl,  and 
whatever  the  terins  between  him  and  his 
landlord  may  l)e,  and  wlietlier  tlie  incoming 
tennnt  tnkvs  the  land  (or  a  week,  a  month,  a 
year,  or  u  Ion;;  term.  ;(.  That  the  outgoing 
tenant  can  make  no  arrangement  with  his 
landlord  as  to  his  valuation,  unless  the  in- 
coming tenant  is  a  (tarty  to  it  and  assents  to 
it.  4.  That  in  the  event  of  u  letting  and 
undertaking,  it  is  (on  the  custom  as  staled) 
uncertain  who  is  to  pay,  viz.,  the  immedi- 
ate lessee  from  the  landlord  or  the  ultimate 
tenant  who  takes  iiossession.  H.  That  such 
a  custom  would  lead  any  prudent  tenant  to 
run  his  farm  out  as  inucli  as  by  law  he 
could,  and  to  leave  as  little  as  ixissible  for 
the  incoming  tenant  to  i)ay  lor.  A  custom 
having  such  conseciuences  as  these  appears 
to  us  so  unreasonable,  uncertain,  and  i)reju- 
dicial  to  the  interests  both  of  the  landlords 
and  tenants  as  to  be  inca|iablc  of  being  sup- 
ported in  point  of  law.  Tlie  argunient  that 
it  is  to  the  interest  of  the  landlord  to  secure 
a  solvent  tenant,  and  that  conscciueiitly  the 
outgoing  tenant  runs  practically  little  or 
no  risk,  does  not  meet  all  the  grounds  of 
unreasonableness  above  |iointed  out.  In- 
deed, it  does  not  adequately  meet  any  of 
them;  for  it  would  be  to  the  interest  of  an 
unscrupulous  landlord  to  ]>iit  in  an  insolvent 
man  as  tenant  for  a  short  time,  so  as  to  avoid 
having  to  pay  the  outgoing  tenant  himself, 
and  yet  to  obtain  possession  before  the  pov- 
erty of  the  new  tenant  could  be  productive 
of  injury.    The  reauouableneMs  or  unroasun- 


ablcness  of  a  custom  is  a  question  of  law 
for  the  court  (see  Tyson  v.  Suiitli,  ;)  Ail. 
&  E.  421),  and  not  a  question  of  fact  for 
the  jury;  and  the  principles  applicable  to 
such  questions  will  be  found  in  Coinju-' 
Digest,  til.  '  Copyhold,'  .S,  and  Tyson  c 
Smith,  ubi  supra,  and  on  these  i)riiiciples  we 
))r()C('ed.  It  may,  indeed,  be  said  that  Ihi! 
custom  here  condemned  is  that  which  pre- 
vails in  practice  all  over  Knglaiid,  it  bein^' 
well  known  that,  as  a  matter  of  fact, 
the  outgoing  and  incoming  tenants  usually 
settle  questions  of  valuation  between  them- 
selves, without  referring  to  the  landlord. 
This  is  no  iloubt  true;  but  if  the  i)racliceis 
examined,  it  will  be  found  to  be  based  en- 
tirely on  the  principle  that  the  landlord  is 
lia'ile  by  custom  to  the  outgoing  tenant, and 
that  the  incoming  tenant  is  not  liable  to  tlio 
outgoing  tenant  wlicre  there  is  no  contract, 
express  or  tacit,  between  them.  See  Favicll 
V.  Gascoigne,  7  K.\ch.  2";! ;  Stafford  v.  CJanl- 
ner,  L.  It.  7  C.  P.  24-2;  Codd  v.  IJrown,  15  L. 
T.  (V.  s.)  T)!!).  The  custom  here  found  to 
exist  is  totally  different;  it  exonerates  the 
landlord  from  all  liability,  and  iin|>oses  a 
liability  on  the  incoming  tenant  to  the  out- 
going tenant,  even  in  the  absence  of  any 
contraci,  express  or  tacit,  between  them. 
There  is  no  inconsistency,  therefore,  in 
condemning  the  custom  and  upholding  Vw 
practice,  which  is  based  upon  a  custom 
wholly  opposed  to  that  with  which  we  hnve 
to  deal."  Lindloy,  J.,  In  Ilradburu  v.  Fob  y, 
17  Alb.  L.  J.  4H:!. 
>  14  Pa.  St.  370. 


I 


PAKTICULAK    CUSTOMS. 


79 


Till'  Iliil)it  of  an  Individual. 


iples  wi', 
llKil  the 
licli  pre- 
it  bfiiif,' 
of  fiic.t, 
usually 
jn  tlioin« 
oi'd. 


liiuil 


•ac.lice  IS 
iis«(l  en- 
iidlorJ  is 
lanl.aud 
lie  to  llie 
•outvac-l, 
e  Favioll 
V.  (lanl- 


|vn. 


15  I.. 


Ifouuil  to 

•utes  Uic 

|)Oses  !i 

the  out- 

of  any 

them. 

kfore,   ill 

(ding  the 

CUHlDlll 

|we  linvc 
It).  Foley. 


dill  not  know  whether  he  had  iiiven  a  receipt  for  the  amount  of  a  note  received 
by  him.     He  wa>  then  asked,   "  Did  you  not   usually  give  receipts  for  notes 
received?"    Tiie  trial  jud^e  refused  to  allow  i  he  question,  and  the  case  was 
appealed.    In  the  Supreme  Court,  however,  the  admissibility  of  the  evidence  was 
not  discussed,  the  court  remarking  that  if  an  error  had  been  committed,  it  had 
been  cured  by  a  concession  made  at  the  trial.     In  1867,  howb^er,  in  the  case  of 
Eiti-ckn  Insurance  Company  v.  Bobinson,^   the  matter  came  directly  before  the 
same  court,  and  was  decided  in  the  atlirmative.     The  question  was,  whether 
notice  of  an  additional  insurance  had  been  given.    The  witness  called  to  prove 
the  uiving  of  the  notice  could  not  say  whether  he  had  done  so  in  that  case,  add- 
ing, "  It  was  my  custom  to  do  so,  to  avert  any  further  trouble."     He  was  then 
asked  "whether it  was  his  custom  to  do  so  in  a  case  like  the  present,  viz.,  where 
he  had  effe':ted  an  insurance  in  one  odlce,  and  subsecjuently  a  new  or  additional 
risk  in  another."     The  trial  court  allowed  the  evidence.     On  append,  its  ruling 
was  alllrnied.     Stk<  >N«i,  J.,  referring  to  Schononan  v.  Fegley,  said :  "  It  is  evident 
that  the  matter  was  regarded  of  no  Importance,  as  in  truth  it  was  in  that  case. 
Nil  reasons  were  given  for  Judge  Bull's  remark,  and  no  authority  in  support  of 
it  was  i^iteil,"  adding:  "We  think  it  not  uncommon  in  practice  to  corroborate 
the  defective  memory  of  a  witness  by  proof  of  what  was  his  habit  in  similar  cir- 
cumstances.   Thus,  a  subscribing  witness  to  a  will  or  a  bond,  if  unable  to  recol- 
lect whether  he  saw  the  ti'stator  or  ohliu'in"  sign  the  instrument,  or  heard  it 
acknowli  ilged,  is  often  permitiil  t'>  lestlly  to  his  own  habit  never  to  sign  as  a 
witness  without  seeing  the  party  ^inii  whose  signature  he  attests,  or  hearing  tliat 
siunatiire  acknowledged,  and  it  seems  to  be  persuasive  and  legitimate  support- 
ing evidence." 

Hut  where  evidence  of  this  character  is  offered,  not  to  prove  a  fact,  but  to 
corroborate  it,  there  can  hardly  be  any  objection  to  Its  admissibility.     In  ITine 
v.  roiiiproy,'^  tlie  i|Ucstion  was  whetlier  C,  the  attorney  for  the  plaintiff  in  ;, 
fonner  suit,  had  directed  T.,  an  ollirer  to  whom  C.  gave  a  writ  for  service,  to 
tuki'  tile   rijceipt  of   M.,   and  not  remove;  the  property.     T.  testified  that  such 
directions  were  ijiveu  ;  C,  that  they  were  not.     It  was  then  proposed  to  show  by 
C.  that  his  uniform  habit  as  an  attorney,  in  (U-livering  writs  of  attachment  to 
ollicers  for  service,  was  not  to  give  instructions  to  them  to  take  receipts,  but  to 
abstain  from  giving  any  instructions  in  regard  thereto.     The  trial  court  refu-sed 
the  evidence,  l)ut  in  the  Supreme  Court  tlie  ruling  was  reversed.     "  There  was  a 
conflict,"  said  I',  vkhi-tt,  ,!.,  "between  C.  and  T. :  C.  testifying  that  he  did  not, 
against  T.  testifying  that  he  did.     In  such  ca.ses  it  is  commonly  claimed  that  the 
testimony  of  him  who  testilles  alllrmatively,  that  an  act  was  done  or  an  event 
happened  (other  things  being  eqmil),  is  less  likely  to  be  erroneous,  and  is  more 
reliable  than  the  testimony  of  idm  who  testified  that  such  act  was  not  done  or 
such  an  event  did  not  happen.     Ordinarily  it  is  said,  and  justly,  that  he  who 
testilles  to  the  negative  may  have  forgotten  a  fact  that  actually  took  place,  while 
lie  who  testilles  alllrmatively  <iannot  remember  a  fact  that  never  did  take  place; 
anil  so,  upon  common  |)rin(Mple  affecting  or  governing  the  credit  and  weight  to 
he  given  to  testimony  Wwtn  in  conflict,  it  should  rather  be  held  that  the  one  had 
forgotten  than  that  the  othin- had  testified  falsely.     It  seems  propc     ^'s  '.rounded 
in  sound  principle  and  sanctioned  by  long  usage,  that  such  allir  ■      ve    icts  and 


\\"m 


»   \\ 


m 


€i:v 


<iti]i 


■Mi 


\l 


.■: 


'  5U  I'u.  :^l.  '256. 


*  39  Vt.  iJU. 


♦    i 


m 


80 


OK    THE    KKgUISlTKS    TO    THEIK    VALIDITV 


The  Habit  of  an  Individual. 


Mii 


'\  • 


'■'  '1'  .>' 


circumstances  as  are  connected  witii  or  kindred  to  the  fact  in  controversy,  and 
so  related  to  it  as  to  affect  tlie  conduct  or  the  memory  of  the  witness  as  to  the 
main  fact,  may  be  testified  to  by  liim  as  bearing  upon  the  lilvcliiiood  of  his  not 
having  forgotten  nor  testified  mistaltenly  as  to  tlie  main  fact.  It  is  conceded, 
and  many  cases  are  cited,  vvlilch  show  that  evidence  of  tlie  character  offered  in 
this  case  only  as  corroborative  has  been  received  as  pertinent  and  adequate  of 
itself  to  prove  a  material  fact  —  as,  in  the  case  of  subscribhi";  witnesses  wlio  have 
forgotten  about  having  witnessed  the  execution  of  a  paper  in  question;  as  in  the 
case  of  notices  of  presentment,  protest,  and  the  like,  when  the  witness  has  no 
recollection  of  the  fact,  but  testifies  to  his  uniform  habit  and  course  of  business 
in  that  respect,  and  to  his  belief  grounded  upon  it,  and  thus  proves  the  mate- 
rial fact  about  which  he  has  no  active  memory.  If  such  testimony  is  proper 
and  adequate  to  prove  a  material  fact,  it  would  seem  si  range  if  it  should  be  held 
not  proper,  as  cv)'ToI)orative  of  the  correctness  of  the  witness  who  swears  by 
his  njemory,  as  to  t!ie  main  and  material  fact."  When  the  case  went  back  for 
another  trial,  the  evi('ence  of  C.  as  to  his  practice  was  admitted  without  objec- 
tion, and  the  defendants  then  offered  to  show  that  it  was  the  practice  of  the 
attorneys  of  the  place,  other  than  C,  to  give  such  instructions  to  ofiiccrs.  Tin' 
trial  court  rejected  this  evidence,  and  litis  time  the  ruling  was  alHrraed  in  tlio 
Supreme  Court.'  In  a  North  Carolina  case,  as  bearing  upon  the  question 
whether  a  railroad  company  had  received  certain  cotton  for  transportation,  a'll 
as  conllrniatory  of  the  statement  of  the  agent  that  they  had  not,  the  compuiy 
asked  the  anent  whether  it  was  not  the  custom  to  weigh  and  mark  goods  as  they 
were  taken  lor  transportation,  —  the  cotioii  in  <|ni'si'u)ii  not  having  been  weighed 
and  marked,  —  but  the  court  ruled  out  the  (jucstion.  On  appeal,  this  was  held 
error.''  Where  the  question  is  whether  a  usage  exists  In  a  city  to  inspect  a  cer- 
tain kind  of  provisions,  evidence  that  the  rules  of  a  chamber  of  commerce, 
having  the  power  given  to  it  by  its  act  of  incorporation  to  appoint  an  inspector 
of  provisions,  and  one  of  the  purposes  of  which  was  declared  to  be  to  "  estab- 
lish and  maintain  uniformity  in  the  commercial  usages  of  the  city,"  said 
nothing  about  the  kind  of  provisions  in  question,  while  they  provided  for  the 
inspection  of  many  other  kinds,  is  admissible  to  show  the  non-oxistence  of  the 
usage.'  In  an  action  auainst  a  bank  for  the  amount  of  a  deposit  alleged  to  have 
been  made  with  the  bank  on  a  certain  day  by  the  plaintiff,  the  bank  defended  on 
the  ground  that  no  deposit  was  made  by  him  on  that  day.  The  cashier  swore 
that  no  deposit  was  made  by  the  plaintiff  on  that  day,  and  was  then  permitted 
to  add:  "  II  is  the  universal  custom  of  the  bank  to  balance  and  settle  the  books 
every  evening.  There  was  no  transaction  of  the  kind.  ♦  *  *  if  lie  (the 
plaintiff)  had  made  a  deposit  on  that  day,  I  would  have  cnteied  the  deposit  In 
the  daily  receipts;  and  this  is  one  reason  for  my  belief  that  he  made  no  such 
deposit."  This  evidence  was  held  proper.'  Wliere,  in  a  >uit  tor  the  loss  by  lire 
of  a  quantity  of  rice  deposited  at  a  mill  to  be  ground,  it  was  i)roved  that  tli;; 
general  custom  of  the  mill  was  to  give  a  receipt  to  the  owner  of  the  rice  ddiv 
ered,  stating  the  quantity  and  the  terms  of  deposit,  it  was  held  that  the  pre- 
sumption was  that  the  receipt  was  so  delivered,  and  t!iat  the  plaintiff  could  not 


11. 


>  Hine  V.  Pomeroy,  40  Vt.  103. 
Vaughn  v.  Baleigh,  etc.,  R.  Co.,  C3N.  O. 


»  Koi -sliaw  V.  Wright,  115  Mass.  361. 
*  Melghen  v.  Uauk,  '25  I'a.  St.  288. 


n 

lu 

so 

t'. 

Itl 


m 


PARTICULAR    CUSTOMS. 


81 


The  Habit  of  an  Individual. 


resort  to  proof  of  the  quantity  aliunde  without  proof  of  his  inal)ility  to  produce 
it.'  So  where  a  parol  acceptance  of  a  draft  was  relied  upon,  evidence  that  it 
was  the  custom  of  the  party  in  accepting  drafts  to  always  do  so  in  writing,  and 
to  enter  them  on  his  Iiooks,  was  admitted.-  Evidence  that  it  was  the  practice  of 
;i  bank  clerk  to  carry  notices  personally  to  parties,  is  admissible  to  jirove  that  it 
wa>  done  in  a  particular  case ;  ^  and  the  question  being  as  to  whether  a  notice 
has  been  mailed  by  a  notary,  his  habit  of  doing  so  is  relevant.'  Abbreviations 
and  symbols  in  a  party's  books  of  account  may  be  explained  by  evidence  of 
his  usage,  but  not  by  his  secret  intent.^ 

§47.  Cases  where  this  Proof  was  rejected.  —  It  was  disputed  between  a 
party  and  an  insurance  agent  whetlier  a  contract  of  insurance  was  entered  into 
between  them.  To  corroborate  the  testimony  of  the  agent,  and  as  tending  to 
show  ttiat  there  was  no  agreement  for  insurance  completed,  the  company  offered 
in  eviik'iici'  a  book  ket)t  ijy  the  agent  for  them,  in  wiiich  he  enttsred  all  risks 
taken  by  him  for  the  company  as  soon  as  taken,  but  in  which  the  risk  claimed 
did  not  appear.  But  it  was  held  not  admissible.  "No  authority,"  said  the 
court,  "is  cited  in  support  of  the  proposition  that  the  omission  to  make  an 
entry  of  a  contract  in  a  l)ook  kept  by  one  party  is  evidence  in  favor  of  that 
party  that  no  contract  was  made.  Such  an  entry  constituted  no  part  of  the 
contract,  and  the  plaintiff  had  no  knowledge  of  the  halnt  of  the  defendant's 
agent  in  that  respect,  auvl  could  not  be  affected  by  it.  It  was  clearly  inadmis- 
sible." *  And  in  a  somewhat  similar  case,  evidence  that  a  factor  was  in  the  habit 
of  making  entries  in  his  books  designating  what  sales  were  giaranteei!  aud 
what  not,  was  not  competent  to  prove  that  he  did  not  guarantee  all  sales  made  !)y 
him;'  and  the  question  being  whether  a  bill  of  sale  had  been  read  over  to  a 
woman  by  a  justice  of  the  peace,  that  such  was  his  habit  was  held  irrelevant." 
In  an  action  of  trespass,  it  was  proved  that  an  execution  against  tlie  plaintiff 
was  delivered  to  the  defendant,  but  it  did  not  appear  that  he  was  the  person  who 
made  the  attachment  for  which  the  action  was  brought.  The  plaintiff,  in  order 
to  estal)lish  the  identity,  gave  evidence  of  a  custom  to  deliver  executions  to  the 
ottlcer  making  the  attachment;  and  the  jury  were  instructed  that  if,  from  this 
usaire,  they  were  satisfied  that  the  defendant  made  the  attachment,  they  should 
lliid  for  the  i)laintift'.  But  the  Supreme  Court  said:  "It  appears  to  us  that 
tliere  is  no  such  uniformity  in  this  custom  or  usage  that  it  can  be  regarded  as 
evidence  to  show  a  particular  and  substantial  fact.  The  custom  of  giving  out 
executions  within  thirty  days  after  judgment  is  far  more  uniform  than  the  on<' 
alliiiled  to,  and  we  sui)pose  that  no  one  ever  relied  upon  that  kind  of  evidenci- 
to  charg(!  property  in  execution.     A  witness  who  gave  out  an  execution  might 


'•  A>hc  ('.  DeRoS'Ut,  H  Jones  I..  ■>40. 

■-  Smith  r.  Clark,  1'2  Iowa,  :!■.', 

■I  shovu  I',  Wiley,  is  I'ick,  r.^s. 

<  Tnibuc  r.  Siiyre,  1  Hush,  l:Jl;  Union 
Riuik  V.  Stone,  M  Me.  ,V.),->;  Miller  v.  Hack- 
ley,  ii  .lohns.  383;  Shove  i\  vviley,  IS  I'Ick, 
,W1;  Coyle  v.  Gozzlcr,  2  Crancli  V.  (Jt.  6'2.^; 
Cookeiuloifpr  t:  I'rcston,  4  Mow.  317:  IJell 
V.  Hagersiowii  Bunk,  7  Gill  2-27.  And  see 
Urailsford  t-.  Williams,  16  Md.  150. 


''  Curren  v.  Crawford,  4  Serg.  A  R.  3  ; 
land  r.Rurton,'2  Harr.  (Del.)  •28'*;  Cuiu! 
V.  Nichols,  13  N.  II.  42n. 

'  Sanborn  v.  Firenien'.s  Ins.  Co.,  l(i  (ii'ay 
148. 

"  I'ai-k  r.  Miller,  27  X.  J.  I..  .(38. 

'  I'ocock  V.  Hendricks,  8  Uill  &  J 
And  see  Goodfellow  l\  .Meegan,32  Mo 


It.nv 

lllliu- 


4-:i. 
280. 


'^  :/ 


\i 


m 


8:i 


ON    THE    KEQUISITES    TO   THEIK    VALIDITY. 


'  f 


:'  :[ 


Execution  of  Contracts. 


rely  upon  his  habit  of  <rivinjr  them  out  in  thirty  days,  and  that  if  he  had  not  in 
the  particular  instance,  it  would  have  made  an  impression  on  his  mind  to  enable 
iiim  to  say  he  did  f;ive  it  out  in  thirty  days;  but  tlie  jury  could  not  witli  pro- 
priety be  allowed  to  consicjer  this  usas^e  as  showing  the  main  fact.  Tt  is 
common  to  attacli  property  to  satisfy  the  judgment:  but  that,  of  itself,  would 
scarcely  be  suHicient  to  siiow  an  attachment  in  a  particular  case.  The  trutli  is, 
this  evidence  is  defective  in  two  particulars:  First,  it  rests  upon  no  s.tMed  and 
reliable  uniformity,  upon  which  the  jury  could  safely  be  allowed  to  act;  second, 
it  presupposes  the  existence  of  other  evidence,  and  in  the  power  of  tlie  party, 
which  not  being  produced,  ordinarily  raises  a  presumption  against  the  party 
that  if  produced  it  would  operate  against  him."  > 


§  48.  Custom  doeB  not  make  a  particular  Mode  of  ezecutingr  a  Contract 
essential.  —  Because  parties  usually  execute  a  contract  in  one  way,  a  contract 
executed  in  another  way  is  not  necessarily  invalid,  if  no  particular  refjuirements 
are  provided  for  by  statutory  enactment.  Thus,  contracts  of  insurance  are  usii- 
ally  written,  and  generally  under  seal,  and  this  custom  had  become  so  geuenil 
that  even  Mr.  Duicu  expressed  doubt  as  to  the  validity  of  an  oral  insurance,  the 
usage  of  a  written  contract  Iniving  so  long  and  universally  prevailed;  Jind  his 
doubts  were  shared  by  Chief  Justice  Tilghman.^  But  when  an  ora!  contract  of 
this  character  was  at  last  presented  to  the  courts,  it  was  ruled  that  its  validity 
could  not  be  questioned  on  the  simple  ground  that  people  usually  made  it  in 
another  way.' 


m 


§49.  Entries  made  in  the  usual  Course  of  Business.  —  The  memoranda  or 
book-entries  of  an  olTicer,  agent,  or  business  man,  when  made  in  the  course  of 
his  business,  and  at  or  near  the  time  of  the  transaction,  jire  evidence,  af u  r  his 
decease,  of  the  truth  of  such  entries.*  Particularly  are  tradesmen's  books  of 
origiuid  entries  receivable  in  evidence  as  prima  fade  proof  when  supported  by 
their  oath,^  though,  uuder  the  statutes  allowing  parties  to  be  witnesses,  books 


>  AngcU  0.  Keith,  21  Vt.  371. 

•■^  1  Diicr  OH  Ins.  (10;  Smith  v.  Odlin,  4 
Yeatcs,  40s. 

■'  McCuUoch  r.  Kiigle  Ins.  Co.,  1  I'ick.  iSO; 
Kennebec  Vo.  v.  Aujj;iisl!i  Ins.  Co.,  (i  Cray, 
204;  Sanborn  v.  KiriMnon'.s  Ins.  Co.,  l(i(jiiay, 
44S;  Trustees  n.  BiooKlyn  Ins.  Co.,  lit  N.  V. 
;iO,') ;  Commercial,  etc.,  Ins.  ('o.  v.  Union,  etc., 
Ins.  Co.,  1!)  How.  olS;  IlaniiUon  v.  Lycoiiiins; 
Ins.  Co.,  17  Pa.  St.  :{;«•;  Helicf  t'ire  Ins.  (  .,. 
0.  tjhaw,  4  0110,571. 

*  Wliart.on  Kv.,§2!H;  .\bb.Tr.Ev.;i2i;Ilest 
on  Ev.,  §  iiOl ;  I'rice  c.  Karl  of  Torriiigtoii,  1 
Salk.  as.");  \V(!b.ster  i,'.  Weh-^UM',  I  Fosl.  &  Kin. 
401;  Doe  v.  Tui-ford,  ;i  l!;uii.  »V,  Ado!.  Siil); 
liright  V.  I.cgcrlon,  2  I»c  G.  l'\  &  J.  tiOi"; 
Kuwiina  v.  llickards,  28  IScav.  :<70;  Ilidgway 
V.  Hank,  12  Scrg.  &  U.  2.">(; :  (Jlonions  v.  Pattni,, 
9  I'ort.  289;  Nicholls  v.  Webb,  8  Wheat.  ;!;;(>; 
JanicB  v.  Wharton,  3  McLean,  492,  lUnlc  n. 
Pettit,  1  Wash.  C.  Ct.  211;   Union  IJank  r. 


Knapp,  3  Pick.  %;  Porter  v.  Judf^on,  1  Cray, 
175 ;  Walker  v.  Curti.s,  UG  Mass.  98 ;  Livingston 
J).  Arnoux,  .50  N.  Y.  5IS;  Cilburt  r.  Sage,  !>' 
X.  Y.  (;;!9;  Ocean  National  IJank  v.  Curll.S.i 
N.  V.  410;  Men-ill  v.  Itliaca,  etc.,  R.  Co.,  16 
Wend.  5.*. 

ISall  f.  (iates,  12  Mete.  491 ;  Linn  v. 
\iiglee,4  Whiwt.  92;  Wiiine  c.  Mickcrson,  1 
Wis.  1;  Slierwood  i\  Sissa,  .'>  Nev.  ;J49;  Lin- 
iiell  V.  Sutherland,  II  Wend.  5()8;  Funk  r. 
lly,  45  Ptt.  St.  444;  Fitzgilibon  y.  Kinney,;) 
Harr.  (Del.)  317;  Karr«.  Stivers,  iWIowa,  lil; 
James  n.  liic^iinond,  o  Ohio,  :i:i8;  .Morse  c 
(Jongdon,  ;i  Mich.  .549;  Kerr  v.  Love,  1  Wa-.i. 
(Va.)  172;  Thomson  v.  Porter,  4  Strobli.  i;i|. 
.58;  Burleson  r.  Goodman,  32  Texas,  2.';i; 
Forsee  v.  .Matlock,  7  Ileisk.  421;  Mood>  r. 
Kobert.*,  41  Miss.  74,  Bower  i'.  Smith,  8  (Jii. 
74;  Landi.v  c.  Turner,  14  Cal.  .573,  U.in  v. 
Byers,  10  Avk.  :J98;  llissrick  v.  Mcl'hei.-nn, 
2U  Mo.  310. 


PAKTICLLAK    CUSTOMS. 


83 


FlntrifS  in  the  Course  of  Business. 


of  orit;iiml  entries  liavc  lost  a  good  deal  of  the  importance  which  formerly  attached 
to  them  as  instruments  of  evidence.  "The  statutes  allowing  parties  to  testify 
have  revolutionized  the  practice,  by  raakin-x  the  party  the  witness  and  allowing 
him  commonly  to  use  his  book  as  a  mcMuoiandum  to  refresh  his  memory;  '  but 
the  rule  admitting  his  account  as  primary  evidence,  with  certiiin  prdiminiiry 
proof,  is  still  in  torce,^  and  it  is  convenient  to  rely  upon  it  in  some  cases  wlierc 
the  right  to  read  the  account,  as  having  refreshed  the  witness's  memory,  may  be 
doubtful.'"  It  is,  therefore,  important  to  note  that  it  is  essential  to  the  adinis- 
sil)ility  of  such  entries  that  the  books  in  which  they  appear  are  his  books  of 
account,  kept  in  tiic!  regular  course  of  his  business,  and  that  there  was  a  course 
of  dealing  between  the  parties.  But  a  regular  account-book  is  not  reciuired;  it 
is  sufti(;ient  if  the  instrument  has  been  kept  according  to  the  usage  of  the  busi- 
ness or  of  the  party.  Thus,  in  Kendall  v.  Field,*  the  plaintiff's  intestate  was 
employed  by  the  defendants  to  hew  timber  for  them  in  their  woods,  and  in  an 
action  for  his  services  a  shingle  was  offered  in  evidence,  and  admitted,  on  which 
he  had  entered  from  day  to  day,  in  the  woods,  an  account  of  tiie  timber  hewed 
by  him  each  day.  "Considering  the  nature  of  his  employmeut,"  said  the 
Supreme  Court  of  Maine,  where  the  case  went  on  appeal,  "and  the  place 
where  he  wa«,  and  that  the  shingle  contained  the  daily  minutes  of  the  busi- 
ness in  which  he  was  engaged,  we  think  it  was  legally  admissible.  It  was 
a  substitute  for  a  memorandum-book,  winch  answered  the  purpose  at  the 
time,  and  was,  perhaps,  as  little  liable  to  alteration  or  erasure,  without 
being  detected  by  the  eye,  as  if  made  on  paper."  So,  in  Boiclnnd  v.  Burton^ 
a  notched  stick  was  received,  with  the  oath  of  the  party,  to  prove  an  account 
for  work  and  labor,  and  in  other  cases  the  memoranda  of  sawyers  made 
upon  boards  and  slips  of  paper,  and  copied  into  a  book;"  the  original  entries 
of  an  account  for  lumber,  made  upon  separate  sheets   of  paper;"   scraps  of 


\% 


.1 


.m. 


.     M 

■  an'-' 


I 


n 


tr: 


,  i '  18 


,V;,j 


I.inn  I'- 
[•UiM'son,  1 
I  ;Mif,  I.in- 

Kui-ik  '■ 

llowa,  l-^'"-- 

Moi-so  '■. 

.,  1  Wii-.i- 

lr(il)h.  K'l- 

j\«i' »  -- 

J  Moo(l>  '•• 
(iili,  H  (;;i. 


!  Henry  v.  Martin,  1  W.  N.  C.  277;  Barnet 
V.  Steiiibiic'h,  1  W.N.C. :);!,').  And  see  Nichols 
V.  llayiies,  78  I'ii.  «t.  174. 

-Stroud  I'.  Tilton,4  Abb.  A])\).  Dec.  24^; 
Hurke  r.  Wolfe,  ;W  N.  Y.  S.  C.  (J.  »V  S.)  263. 

15utler  c.  Cornwall  Iron  Co. ,22  Conn.  360; 
Uirue  V.  Kowland,  7  Barb.  107;  Tomlinson  r. 
iioTsl,  W  r.arb.  40. 

<  14  Me.  30. 

•■'  2  Harr.  (Del.)  28S.  The  plaintiff  in  this 
case  WW  sworn  on  the  voir  dire  to  prove  lii.s 
book.<,  when  he  prodnced,  as  his  book  of 
original  entries,  a  small  sti(;k,  cut  and 
notched  in  a  variety  of  way.-',  by  which  he 
111  Hc'viook  to  [irove  an  account  running; 
through  two  or  throe  years,  and  consistinK 
of  a  nuiubcr  of  items,  lie  vjis  fully  pxaiu- 
iiied,  and  the  accuracy  of  tiis  entries  tested 
liy  an  account  made  out  from  it  some  time 
before.  They  cm-responded  with  the  e.xcep- 
tion  of  one  item,  and  it  was  ailcrwards 
ascertained  tliat  oii«  of  Hie  notcheti  had 
been  defaced  by  the  breaking  of  the  sti<-,k. 
The  iircHunt  consisted  of  thirteen  drtlerent 
item.-,  aud  the  court  permitted  the  stick  to 


go  to  the  jury  with  the  party's  oath  that  the 
notches  were  made  at  the  time  the  work 
was  done;  and  the  pliiintiff  had  a  verdict. 
Wooden  tallies  were  formerly  in  use  in 
England,  even  for  the  kec|iing  of  public 
accounts,  liesl  on  Ev.,  §  2'.W ;  3  l'epy.s'  Diary. 
They  continue  to  be  used  in  this  country  by 
bakers  and  milkmen.  Wliart.  on  Ev.,§(!14, 
ndte. 

^'  Davison  v.  Powell,  10  How.  I'r.  467. 

7  "  There  are  no  appearances  on  the  face 
of  tlie  account  which  make  it  incompetent. 
It  is  in  the  handwriting  of  the  party,  and  i^ 
a  fair  statement,  in  the  usual  manner  of  an 
account,  with  date,  ((uantity,  and  iirice.  The 
entries  are  proved  to  have  been  made  at,  or 
nearly  at  the  time  that  the  lumber  was 
delivered.  The  party  kt^pt  no  clei'k,  and 
these  were  the  only  entries  made  of  the  sale 
and  delivery  of  the  lumber  it  was  also 
proven  that  the  plaintiff  kept  correct  ac- 
counts. It  is  objected,  however,  that  there 
was  no  book  in  this  case  of  original  entries 
proven.  It  is  true  there  was  no  book 
proven,  but  it  was  proven  that  the  ideiilieai 


84 


ON   THE    REQUISITES   TO   THEIR    VALIDITY 


Entries  in  the  Course  of  Busiiiosa. 


paper,'  and  a  tabular  form,''  have  been  admitted  in  evidence.  Where  there  Ih 
but  a  single  sale,  although  that  may  have  included  more  tiiiin  one  article,  books 
of  account  cannot  be  received  as  evidence  of  that  transaction.  They  are  admis- 
sible only  where  a  habit  of  dealing  betwreen  the  parties  is  proved.'^ 


paper  containing  the  account  was  the  orig- 
inal paper  and  entries  thereon  of  the  party; 
he  kept  no  other.  It  is  not  material  whether 
the  entries  be  made  in  a  book  or  on  a  sepa- 
rate sheet.  It  is  only  material  that  they 
be  an  account  of  the  dealing  between  the 
parties,  and  be  primary  and  original.  *  *  * 
The  evidence  was,  that  the  witnesses  had 
dealings  with  the  plaintiff;  tliat  they  had 
settled  with  him  upon  presentation  of  their 
accounts,  and  that  they  found  those  accounts 
correct.  The  exception  is,  that  no  book  of 
accounts  was  proven  to  have  been  correctly 
kept  by  the  plaintitf.  If,  as  we  have  at- 
tempted to  show,  it  is  immaterial  whether 
the  original  entries  were  kept  in  a  book  or 
on  a  .separate  sheet,  then  it  is  not  nccessarj' 
to  prove  tlial  the  ))laintiff  kept  correct 
accounts  in  a  book.  The  object  of  this 
testimony  is  to  fortify  the  evidence  of  tlie 
plaintitf's  original  entries,  by  showing  a 
habit  of  fair  dealing  in  like  transactions 
with  others  on  his  part."  Nisbet,  J.,  in 
Taylor  v.  Tucker,  1  Ga.  '2;U. 

'  .Sniitli  V.  .Smith,  4  Ilarr.  (Del.)  5:{2.  But 
see  Jones  r.  .Jones,  21  N.  H.  219.  , 

-  So  long  as  the  rule  of  law  is  allowed  to 
prevail  that  the  account-books  of  a  plain- 
tiff, verilied  by  his  oath,  may  be  admitted  to 
prove  cliurges  for  services  done  and  goods 
sold,  much  must  depend  upon  the  appear- 
ance and  character  of  the  book  offered  as 
evidence,  and  the  view  taken  of  it  by  the 
judge  who  tries  the  case.  It  is  true  that  the 
question  whether  a  book  is  comi)etent  to  go 
to  the  jury  i.-.  ii  i|uestion  of  law;  but  as  the 
law  has  prescribed  no  mode  in  which  a  book 
shall  be  kept  to  make  it  evidence,  the  ques- 


tion of  competency  must  be  determined  by 
the  appearance  and  character  of  the  book, 
and  all  the  circumstances  of  the  case,  indi 
eating  that  it  has  been  kept  honestly,  and 
with  reasonalilc  care  and  accuracy,  or  the 
reverse.  In  the  present  case,  the  court  can 
perceive  no  conclusive  objection  to  the 
admission  of  a  book  called  a  time-book. 
It  is  a  book  kept  in  a  tabular  form,  in  whid) 
the  days  of  the  month  are  placed  at  the  head 
of  the  column,  and  the  name  of  the  workmen 
on  the  side ;  and  at  the  end  of  each  day,  or 
near  it,  a  figure  is  put  down  at  the  place  of 
intersection, — say,  one,  one-half,  or  one- 
fourth,  —  indicating  thereby  that  the  person 
has  worked  the  whole  or  a  fraction  of  that 
day.  It  cannot  be  objected  that  the  time  is 
put  down  in  tigures,  for  that  is  the  case  in  all 
modes ;  nor  that  it  was  not  an  original  entry, 
because  that  fact  must  depend,  as  in  other 
cases,  on  the  oatli  of  the  party  to  prove  that 
it  was  made  at  or  about  the  time  it  purports 
to  be  made,  .and  by  the  proper  party.  It  ap- 
pears to  us  to  be  intelligible,  and  not  more 
liable  to  fraudulent  fabrication  or  alteration 
than  entries  kept  in  ledger  form,  wliicli 
have  been  held  to  be  good."  Shaw,  C.  J.,  in 
Mathes  v.  Kobinson,  8  Mete.  209.  And  see 
Hall  V.  Glidden,  ;59  Me.  445;  Faxon  «;.  Ildlis, 
l;i  Mass.  428;  Jones  v.  Long,  3  Watts,  :i'.'5; 
Itodnian  c.  Hoops,  1  Dall.  85;  Thayer  f.  Deen, 
2  Mill  (S.  C),  (i77;  Richardson  r.  Emery,  2:t 
N.  II.  220. 

3  CorniiiK  '■.  Ashley,  4  Denio,  :$,'>4;  Vo9- 
burgh  J'.  Tliayer,  12  Johns.  461;  Case  v. 
Potter,  8  Johns.  211;  Linnell  v.  Sutherland, 
11  Wend.  568. 


Iti. 


11 

a 


m. 
iiij 


II'     '   u\\ 


C  IT  A  P  T  E  R     TT. 

ON    rilE    PROOF    NKCKSSARY   TO    ESTABLISH    THEM. 


iLM'STiJAi  INK  Casks:  — 

8.  Pi'i-rott  V.  Thncher.  —  A  single  witness  insufficient  if  contradicted. 
J).  Fleet  V.  Murton.  —  Yroot  of  usages  of  otiier  trades. 

Notes:  §50.  General  customs  are  judicially  noticed. 

r>\ .  But  particular  usages  and  customs  must  be  proved. 

52.  Burden  of  proof  —  Custom  must  be  proved. 

53.  A  single  witness  may  prove  a  custom. 

54.  But  not  if  his  testimony  be  contradi(;ted. 

5").  Mode  of  proving  usages  and  customs  —  Testimony  of  witnesses. 
5i;.  Same  —  Adjudged  cases. 

57.  Who  may  be  called  as  witnesses. 

58.  Order  of  proof  —  Proper  questions. 
5'.».  Quantum  of  evidence. 

HO.  Law  and  fact. 

01.  Evidence  of  customs  in  different  places  or  in  other  trades. 

02.  Customs  must  be  construed  strictly. 

03.  Conflict  of  laws. 
64.  Pleading. 


8.   A   SINGLE   WITNESS    INSri-FICIKNT    IF   CONTRADICTED 

Paurott  V.  Thac^her.* 


*'     1 


^■■■y- 
U 


w,r  iti 


"1:1 


m 


;5.'i4;    V09- 

Case   t'. 
luUicrland, 


In  the  Supreme  Jvrlicial  Court  of  Massachn setts,  March   Term,  1830. 

Hou.  Isaac  Parkek,  Chief  Jn.stke. 
"     Samukl  Putnam,     \ 
"    SA.MtKL  S.  WiLDK,  >  •hulges, 
'•    Mahcl's  Morton,     ' 

A  usage  of  a  particular  business  is  not  sufficiently  proved  by  the  testimony  of  only  one 
witnvKs  to  support  it,  where  another  witness,  equally  familiar  with  the  business,  denies 
it,  and  where  other  witnesses  on  the  subject  might  be  had. 

This  was  assumpsit  for  goods  sold  and  delivered,  and  on  the  follow- 
ing note,  viz. :  "  F^or  value  received  in  N.  E.  rum,  for  use  of  myself 
and  owners  of  brig  Ida,  I  promise  to  pay  Horace  Scudder,  or  order,  5111 


*  Reported  9  Pick.  426. 


(85) 


i  :'« 


^ 


86 


ON    THE    PROOF    NECESSARY    TO    ESTABLISH    THEM. 


Piinott  n.  TliaclicT. 


1   'i 


iollars  5.'5  cents,  ou  demand,  with  interest  after  six  months.  For  myself 
ind  owners  of  brig  Ida.  Felt.  2H,  1828.  Aixkn  Ham-i:tt."  Tiie  note 
was  indorsed  by  Sen(ider  to  the  plaintiffs,  without  recourse.  Tlie  note 
ilso  contaiiuid  an  indorsement  by  Scudder  acknowledging  the  riH'cipt 
of  $l(j;^.67,  "  being  net  account  of  sales  of  ."38  barrels  of  gin,  after 
deducting  100  dollars,  amount  of  an  order  accepted  to  pay  Joseph  Swan 
out  of  tfu!  proceeds  of  said  gin." 

At  the  trial,  before  Wilde,  J.,  it  was  admitted  that  the  defendants 
and  AHen  Hallott  were  joint  owners  of  tlie  brig  Ida,  which  was  built 
to  run  as  a  regular  packet  hetwccMi  the  ports  of  Boston  and  Baltimore. 
Scudder,  being  called  as  a  witness  by  tiie  pliiiiitiffs,  tostiliod  that  he, 
l)eing  a  commission  merchant  in  Boston,  sold  a  (luantity  of  New  Eng- 
land rum  belonging  to  the  plaintiffs  to  Ilallett,  wlio  was  the  master  of 
the  Ida,  on  the  credit  of  her  owners ;  that  the  rum  went  on  board  of 
her;  that  he  took  the  note  in  payuient;  that  he,  Stanton,  Fiske,  Nichols, 
and  the  defendant  Thacher  were  agents  to  procure  freights  and  passen- 
gers for  the  Ida;  that  it  had  been  a  general  {tractice  for  masters  of 
vessels  in  this  business  to  take  up  goods  on  account  of  the  owners. 
when  a  full  freight  could  not  be  [trocured ;  that  Hallett  proceeded  in 
the  Ida  to  Baltimore,  where,  failing  to  sell  the  rum,  he  shi[)ped  it  to 
Charleston,  where  he  exchang(!d  it  for  thirty-eight  bant;ls  of  gin,  which 
he  shi[)ped  to  Boston,  and  which,  on  its  arrival,  was  placed  by  Wirreii 
Hallett,  a  brother  of  Allen  Hallett,  and  one  of  the  defendants,  in  the 
witness's  hands  to  sell  on  account  of  their  note,  and  that  ho  accordingly 
sold  the  same,  and  made  the  indorsement  of  the  proceeds  on  the  note. 
Allen  Hallett  died  on  his  ))assage  from  Charleston  to  Boston. 

On  cross-examination,  this  witness  stated  that  there  was  an  under- 
standing between  hiiu  and  Allen  Hallett  that  the  proceeds  of  the  rum 
should  be  sent  to  him,  though  there  was  no  strict  baigain  to  that  effect. 
He  admitted  that  he  never  consulted  with  the  defendant  Thatrhor.  who 
resided  in  Boston,  and  was  known  to  him  to  be  one  of  the  owuers,  as  lu 
the  sale  of  the  gin  or  the  purchase  of  the  rum  by  ^ ''  .lallett,  ami 
that  Thacher  never  had  notice  of  the  note  until  ai  vUen  Ilallett 
death,  and  was  not  called  on  to  pay  the  balance  due  i,,  m  it  u'  'il  after 
Allen  Hallett's  estate  had  been  represented  to  be  insolvent.  The  wit- 
ness said  that  he  expected  that  the  note  would  ha\(^  been  paid  by  Allen 
Hallett,  and  therefore  did  not  apply  to  the  owners.  He  also  testified 
that  Allen  Hallett,  some  time  before  he  was  in  the  Ida,  had  been  master 
of  the  Helen,  which  belonged  to  the  Union  Line  of  Baltimore  packets, 
and  that  he  had  several  times  sold  him  goods  on  the  credit  of  the  own- 
ers, which  goods  had  gone  to  the  credit  of  the  concern,  and  the  pur- 


ONK    \VH\NESS  —  WUKN    INSUt'FICIKNT. 


87 


llUi>tratl.<'  (^iisi's. 


under- 
lie rum 
effect. 
1     'vlio 
il«  1(1 
Itt,  anil 
Ulett 
III  lifter 
|he  wit- 
Allen 
stifled 
master 
,ckets, 
[e  own- 
le  pur- 


c' asos  had  Imhmi  ratified  hytiiem;  but  that  he  diil  not  know  that  the 
oiirchiise  of  ruin  in  tlii^  »r:i.se  was  ivnown  to  the  owners  of  tiu;  Ida  at  tlu; 
tinu-  it  was  made.  He  supposed,  however,  thouijli  he  did  not  (iertainly 
l<ii-iw.  that,  it  \v;i>  known  to  Warren  Hsdii'tt  at  tlie  time  lie  put  the  gin 
intn  his  hands.     Here  the  jthiintiffs  rested  their  case. 

Tlie  defeMd:nit>  ctiiied  Francis  StrMitoii  as  a  witness,  who  testified  that 
lie  had  been  conctMiicd  in  the  lines  of  packets  between  Boston  and  Balti- 
more, and  BostDU  and  New  York,  f(jr  fifteen  or  twenty  years ;  that  the 
house  of  Stanton,  Fiske  &  Nichols,  to  wliich  he  belonLre<l,  had  been 
during'  'ii.ti  period  a<^ents  for  those  lines  of  packets,  and  still  were  for 
the  New  York  j'ackcts ;  tiuit  he  Inid  never  known  the  masters  of  tiiese 
vessels  take  up  ii;o()ds  on  tlie  credit  of  the  owners  in  Boston,  or  any 
otlier  port ;  and  that  tliere  Avas  not,  to  his  knowli-l<j;e,  .•my  sucli  gi-neral 
usan'e  or  practice.  He  said,  howevei-,  that  it  was  u.-»ual  in  the  Union 
Line  to  permit  masteis,  when  vIk;}'  had  short  frei>;ht,  to  purchase  flour 
and  otlit'i-  inercluuidise  out  of  tlie  stock,  whieli  tionsisted  of  funds  on 
hand  derived  from  the  earnings  arising  fr.tni  freight  and  passengers 
and  iirofits  of  these  purchases,  luit  not  to  make  purchases  on  credit,  or 
otherwise  than  with  the  stock  ;  and  that  the  stock  so  purchased  belonged 
to  the  owners. 

The  judge  instructed  the  jury  that  unless  they  were  satisfied,  from 
the  evidence,  that  Allen  Haliett  wtis  expressly  or  impliedly  authorized 
by  the  defendants  to  })urchase  the  goods  for  them,  or  on  their  credit,  the 
plaintiffs  had  not  maintained  their  action;  and  that  the  burden  was  on 
the  plaintiffs  to  prove  that  Haliett  had  that  authority.  The  jury  were 
also  instructed  that,  there  being  no  express  evidence  of  such  authority, 
they  should  lind  for  the  defendants,  unless  they  were  satislied  that  there 
was  some  usage  of  trade  authorizing  the  master  to  bind  his  owners,  or 
that  the  goods  i)urchased  came  to  the  use  of  the  owners. 

The  jury  returned  a  verdi(;t  for  the  plaintiffs  for  the  balance  due  on 
the  note,  deducting  the  indorsement  of  $iG;i.G7,  with  interest.  On 
inqiury,  the  foreman  stated  that  the  jury  had  rendered  their  verdict  on 
the  ground  of  a  general  usage  of  masters  of  packets  in  this  line  to 
purchase  goods  on  the  credit  of  their  owners;  but  another  juryman 
stated  that  lie  and  some  of  the  rest  were  of  opinion  that  there  was 
sulHcieut  evidence  to  prove  that  the  rum  came  to  the  use  of  the  defend- 
ants. 

The  defendants  moved  for  a  new  trial,  because  the  verdict  was  against 
both  law  and  evidence ;  and  they  also  excepted  to  the  verdict  on  the 
ground  that  the  $100  paid  to  J.  Swan,  being  part  of  the  proceeds  of  the 
gin,  ought  to  have  been  applied  towards  payment  of  the  note. 


i 


1^. 


m 


m 


88 


ON    THE    PROOF   NECESSARY    TO    E8T/BLI8H    THEM. 


PaiTott  V.  Thaclier. 


1 

:  1'    ' 

!'s 

il 

i 

if:, 

.     -     ^     I,: 

Ijii 


Warner^  for  ti  e  defendants,  contended  that  tlie  verdict  was  against 
the  evidence.  No  express  authority  for  Allen  Hallett  to  make  the  pur- 
chase on  the  credit  of  the  owners  was  proved.  Such  an  authority  was 
not  incident  to  him  merely  as  the  master  of  the  vessel.  The  usage 
attempted  to  be  proved  is  unreasonable,  becsuse  the  right  of  purchasing 
goods  is  not  necessary  for  effecting  the  business  for  which  masters  of 
vessels  are  appoiiited.     Besides,  the  evidence  does  not  prove  the  usage. 

Cnrlis,  contra,  to  show  that  the  court  ought  not  to  grant  a  new  trial 
where  there  was  evidence  on  both  sides,  cited  Hammond  v.  Wadhams ' 
and  Brooks  v.  Barrett.^ 

PAitKEii,  C.  J.,  delivered  the  opinion  of  the  court. 

We  are  of  opinion  that  there  must  be  a  new  trial  in  this  case,  on 
account  of  the  defect  of  evidence  to  prove  that  Capt.  Hallett  was 
authorised  by  the  owners  of  the  vessel  to  make  purchases  and  give 
piomissory  notes  for  them. 

There  being  no  express  authority,  it  was  supposed  to  be  implied  from 
the  usage  of  this  particular  trade,  or  because  the  rum  purcliiised  went 
to  the  use  of  the  owners,  or  because  there  was  a  knowledge  of  the  pur- 
chase on  their  credit  and  an  acquiescence  in  it,  none  of  which  facts  are 
made  out  by  evidence  sufficient  to  authorize  the  jury  to  find  a  vei'dict 
for  the  plaintiffs. 

In  regard  to  usage,  it  is  proved  only  by  the  evidence  of  Scudder ;  and 
even  his  testimony  hardly  proves  it,  for  he  says  it  was  a  general  practice 
among  masters  of  vessels  in  this  line  of  business  to  purchase  goods  on 
the  credit  of  their  owners  when  there  was  a  deficiency  of  freig'.u:.  Such 
a  practice  may  exist  short  of  a  usage.  And  it  should  seem,  when  he 
comes  to  particularize,  that  his  kn  '^dodge  of  that  practice  was  derived 
from  his  transactions  with  anothci  line  of  packets,  where  it  may  have 
existed,  and  not  with  this  line.  Such  a  practice  may  have  existed 
among  masters  of  vessels,  and  yet  the  owners  may  never  have  assented 
to  it ;  and  without  such  assent  the  i)ractice  would  not  bitid  them.  In 
the  case  of  the  Union  line  of  packets,  to  which  the  practice  mentioucMl 
in  this  testimony  had  relation,  he  says  that  the  property  purcliase<l  by 
the  mostors  went  into  the  accounts  of  the  concern,  and  the  piirchasos 
were  ratified  by  them.  This  is  a  case  without  any  such  account,  niid 
without  any  i-atitication.  But,  suppose  that  the  amount  of  his  testimony 
was  that  there  was  such  a  usage,  we  \hu\k  it  not  sufficiently  proved. 
Usage  is  a  thing  which  must  be  public  and  notorious  —  at  least  known  to 
all  masters  of  packets  in  this  trade.     Scudder  stands  alone  in  his  testi- 


;.!,  ;r 


I  5  MasB.  am. 


•  7  Pick.  90. 


ONE    WITNESS  —  WHEN    INSUFFICIENT. 


89 


Illustrative  Cases. 


monv  and  is  directly  contradicted  by  Stanton,  an  ownor.  and  agent  of 
the  Union  Line  of  packets.  Tiiese  witnesses  may  be  supposed  equally 
intelli^'ent  and  honest.  Stanton  may  have  had  a  bias  against  establish- 
ing a  usage  which  might  render  him  liable.  Scudder  was  interested  as 
a  commission  merchant,  to  avoid  the  charge  of  negligence  in  selling  the 
plaintiffs'  goods  to  a  man  unable  to  pay.  Now,  here  is  a  subject  of 
conunon  knowledge  proved  by  one  witness  and  contradicted  by  another. 
It  is  not  the  case  of  a  fact  pi'oved  by  the  testimony  of  one  witness  and 
contradicted  by  another,  in  which  the  jury  may  prefer  positive  to  nega- 
tive evidence.  When  the  question  is  of  a  custom  or  usage,  and  it  is 
not  known  to  those  who  from  their  l)usiness  and  connections  have  the 
best  means  of  knowing  it,  ignorance  of  it  is,  in  si  .ne  sense,  positive 
testimony  that  it  does  not  exist. 

Suppose  the  question  to  be  as  to  the  existence  of  a  usage  of  trade 
in  some  foreign  port,  according  to  which  the  rights  of  parties  are  to  be 
decided,  and  that  there  are  two  foreign  witnesses,  both  merchants 
belonging  to  the  place  and  dealing  in  the  same  business,  and  one  testi- 
fies in  support  of  the  usage  and  the  other  against  it  —  can  it  be  said 
that  the  usage  is  proved,  especially  if  other  merchants  from  the  same 
place  are  here,  and  have  not  been  calletl  upon? 

Now,  the  usage  in  question  is  saiii  to  exist  at  home,  and  jirobably 
there  were  many  masters  of  packets,  and  others,  in  i>ort  who  would  know 
if  it  existed.  In  such  case,  we  think  th(^  fact  is  not  made  out  so  as  to 
require  a  comparison  of  evidence ;  that,  under  such  circumstances,  one 
witness  is  not  sutflcient  to  prove  the  existence  of  a  usage  (»f  trade  of  a 
somewhat  extraordinary  nature,  to  wit :  th^t  the  owners  of  vessels  are 
to  be  bound  for  all  purchases  made  by  the  masters. 

But  there  is  another  sufficient  reason  for  granting  a  new  trial.  The 
jury  do  not  appear  to  have  decided  upon  either  of  the  points  upon  which, 
according  to  the  charge,  their  verdict  was  to  rest.  The  foreman  stated 
that  they  were  satisfied  with  the  proof  of  the  usage ;  a  jiu'or  saitl  that  he 
and  some  others  were  of  opinion  that  the  rum  i)urchased  had  come  to 
the  use  of  th'e  owners ;  from  which  it  is  to  be  inferred  that  he  and  those 
for  wiiom  he  spoke  wei-e  not  satisfied  in  regard  to  the  usage.  We  cer- 
tainly do  not  mean  to  encourage  the  practice  of  questioning  jurors  as  to 
the  grounds  of  their  opinions;  but  where  there  are  distinct  grounds 
open  which  the  verdict  may  be  given,  perhajjs  it  is  not  impro{)er  to 
ascertain  which  they  adopted,  as  there  may  be  little  or  no  evidence  u|)on 
one,  and  sufficient  upon  another ;  and  if  it  appears  that  they  did  not 
agree  upon  either  of  the  grounds,  I  do  not  see  how  their  verdict  can 
stand,  unanimity  being  reciuired.     If  tluue  are  three  distinct  grounds 


'  % 


i  I 


■  il 


>» 


4 


ma 


ij'j 


■{.] 


n 


90 


ON    THE    PROOF   NECESSARY    TO   ESTABLISH    THEM. 


Fleet  V.  Murton. 


■|  !.: 


«   ii  H 


upon  which  an  action  can  be  maintained,  all  iiulepenclent  of  each  other, 
and  four  only  of  tiie  jury  agree  upon  eadi,  J  do  not  see  how  they 
can  amalgamate  their  opinions,  and  make  a  legc*i  verdict  out  of  them. 
With  regard  to  the  opinion  which  some  of  the  jury  adopted,  to  wit, 
that  the  rum  for  which  the  note  was  given  went  to  the  use  of  the  own- 
ers, we  do  not  see  the  least  evidence  to  su^jport  it.  No  account  was 
produced  on  trial  showing  any  charge  or  credit  to  the  owners.  Scudder 
expressly  states  that  he  had  no  communication  with  Thachor  respectinji; 
the  rum,  the  gin  which  was  taken  for  some  of  it  which  was  sold,  or  the 
note  given  by  the  master.  He  had  some  suspicion  that  Hallett,  the 
brother  of  the  captain,  knew  of  the  transaction,  because  he  coinniittcd 
to  him  the  gin  to  sell;  but  there  was  quite  as  much  reason  to  entertain 
a  contrary  supposition,  as  Thacher  would  have  been  likely  to  tako 
charge  of  any  property  which  proceeded  from  goods  belonging  to  the 
owners.  It  being  very  apparent  that  the  subject  was  not  deliberately 
considered  by  the  jury,  and  if  a  usage  existed  of  the  kind  supposed,  it 
being  quite  easy  to  prove  it  satisfactorily,  we  think  a  now  trial  must  hi; 

had. 

Neio  trial  granted. 


I 


9.   PROOF   OF  USAGES   OF   OTHER   TRADES. 


.    Fleet  v.  Muuton.* 

In  the  English  Court  of  Queeii's  Bench.,  November,  1S71. 


m  '%. 


u 


Sh' Ar.KXANDEii  Jamks  Edmund  Cockbukx,  Bart.,  V kief  Justice. 

'•    Coi.lN    Bl.ACKBUKN,  Kt., 

"  Jonx  Mkllok,  Kt., 

"  1U)UKHT  Lush,  Kt.,  '-  Judges. 

"  Jamks  IIaxnen,  Kt., 

"    .lOIlN    RlCIIAUD    QUAIN,  Kt., 

M.  ife  W.,  friiit-l)n)kors  in  London,  bein;;  eniploycfl  by  F.  *  D.,  nicrchants  in  London,  to  sell 
for  them,  gave  thoiu  the  following  contract  note,  addressed  to  F.  &  D,:  "  Wc  liavi!  iln- 
day  sold  for  your  account  to  onr  principal  *  *  *  tons  of  raisins.  M.  &  W.,  bi'okcr^." 
The  principal  luiviiig  accepted  part  of  llie  raisins,  and  not  having  acco))tcMl  llie  rust,  I'". 
&  1).  brought  an  action  on  the  contract  against  M,  A  \V.,  and  souglit  to  make  tliem  per- 
sonally  liable  by  the  custom  of  tin?  trade.  On  tlie  trial,  in  addition  to  ovidun(!e  of  i 
custom  in  the  London  fruit-trude  that  if  brokers  did  not  give  the  names  of  tlieii'  priii 
cipals  in  the  contract  they  wore  lielil  personally  liable,  althougli  tliey  contraclril  as 
brokers  for  ii  principal,  they  offered  evidence  of  a  similar  custom  in  the  Loiulo;! 
colonial  niarkcl.  Held,  that  the  latter  was  also  admissible,  being  evidence  in  a  siniilai- 
trade  in  the  name  place,  and  as  luniiing  to  corroborate  the  evidence  as  to  the  oxisIlmh u 
of  such  a  custom  in  tlie  fruit  trade. 

*  IJeiiorled  !,.  It.  7  Q.  H.  126;  1  Moak's  Reii.  32. 


i  :!, 


»n,  to  si'll 

liavi!  i)n- 

1 

ji-oUcrs." 

1 

e  rosl,  I'"- 

1 

hciu  1)0'' 

'8 

Mice  of  1 

[. 

H'.iV  lll'ill- 

i 

[•jli'U'il  ''■■* 

l.oinlii'i 

( 
i 

ii  Miiiil:ir 

\ 

.!Xl>UM|il! 

USAGES    OF    OTHEK    TRADES. 


91 


Illustrative  Cases. 


Deoi.au ATfoN:  That  on  the  30th  of  October,  18G9,  plaintiffs  and 
defeiiihints  ag-eed  that  plaintiffs  should  sell  to  defendants,  and  defend- 
ants should  b.iy  of  plaintiffs,  fifty  to  seventy  tons  of  raisins  at  a  certain 
price;  that  defendants,  having  accepted  part,  refused  to  accept  the 
residue  of  the  raisins  according  to  the  contract.  Pleas,  inter  alia,  that 
defendants  did  not  agree  as  alleged.     Issue  joined. 

At  the  trial  before  Blackblun,  J.,  at  the  Sittings  in  London  after 
^'='•haelraas  Term.  1870,  it  appeared  that  the  plaintiffs,  Messrs.  Fleet  & 
>bing.  are  merchants  in  London,  and  the  defendants,  Messrs.  Murton 
J.  VVcbb,  are  Itrokeis  in  the  fruit  trade  in  London.  The  defendants 
were  employed  in  October,  1869,  by  the  plaintiffs,  to  sell  for  them 
e(!rtain  consigiunents  of  raisins,  and  the  defendants  handed  to  the 
plaintiffs  the  following  contract  note:  — 

'•  M>:ssrs.  Fleet  &  Dobbing. 

"London,  :iOth  of  October,  18G9. 

"  We  have  this  day  sold  for  your  account  to  our  principal,  to  arrive 
per  steamer  from  Trieste,  ♦''fty  to  seventy  tons  of  good,  sound,  Chesne 
raisins  in  ciises,  at  41.s  per  cwt,  usual  market  terras.  Cash  on  delivery. 
F.  &  D.  to  draw  on  M.  &.  W.  for  £500  (if  required)  on  landing,  hand- 
ing equal  value.     Customary  allowances. 

"  MuKTON  &  W1.1JB.  Brokers,  25  Mincing  Lane." 

The  defendants  had  i)urchased  on  behalf  of  Demetrius  I'appa,  and 
part  of  the  raisins  were  accepted  and  paid  for  by  him  through  the 
defendants ;  but  becoming  embarrassed,  he  refused  to  receive  any  of 
the  other  consignments,  upon  which,  on  the  1st  of  December,  18(!9,  the 
deleiidants  wrote  to  the  plaintiffs  informing  them  that  Mr.  Demetrius 
Pappa  was  the  buyer  under  the  contract  of  the  30th  of  October.  1869, 
and  that  he  refused  t  ret-eive  any  mcjre  of  the  raisins ;  to  which  the 
plaintiffs  replied  that  tne  buyer  was  bound  to  receive  the  whole,  and 
that  tiiey  knew  nothing  of  Pappa,  whose  name  the  defendants  now  fur- 
nished, as  the  plaintiffs'  contract  was  with  the  defendants  themselves. 

In  (n'der  to  make  the  defendants  personally  liable  on  the  contract 
evidence  was  tendei-ed  on  behalf  of  the  plaintiffs  that  in  the  London 
fruit-trade,  if  the  brokers  do  not  name  their  principal  in  the  contract 
note  itself,  the  brokers  are  held  personally  responsible  on  the  contract. 
And  evidence  was  also  tendered  of  a  similar  custom  in  the  London 
colonial  market,  viz.  :  that  the  brokers  are  held  personally  responsible, 
unless  they  give  the  name  of  their  principals,  in  writing,  within  three 
days  after  making  the  contract.  Both  classes  of  evidence  were  received 
liy  the  learned  judge,  after  objection  by  the  defendants'  counsel,  and 
the  jury  found  that  the  custom  was  proved. 


\    1 


:**H 


i  '.f  f'fia 


'     ^ 


I;       (1 


92 


ON    THE    PROOF   NECESSARY    TO    ESTABLISH    THEM. 


Fleet  V.  Murton. 


'    I 


is  > 


A  verdict  passed  for  the  plaintiffs  (the  amount  to  be  afterwanis 
settled),  with  leave  to  move  to  enter  a  verdict  for  the  defendaiils,  or  a 
nonsuit,  if  the  court  should  be  of  opinion  that  evidence  of  custom  was 
not  admissible. 

A  rule  was  obtained,  accordingly,  to  enter  a  verdict  for  the  defendants, 
or  a  nonsuit,  on  the  ground  that  the  evidence  of  custom  was  not 
admissible  to  add  to,  alter,  or  vary  the  contract;  or  for  a  new  trial,  on 
the  ground  that  evidence  of  the  custom  in  the  colonial  market  Avas  not 
admissible. 

H,  James,  Q.  C,  and  Cohen  showed  cause.  — The  first  point,  as  to  the 
admissibility  of  evidence  of  a  custom  in  the  particular  trade  wherehy 
the  broker  is  held  personally  liable  on  the  contract  unless  he  discloses  liis 
principal's  name,  is  concluded  by  the  authority  of  Humfrey  v.  Dale.  •  This 
custom  is  clearly  not  inconsistent  with  the  written  contract  within  that 
case.  Nor  is  it  any  answer  to  say  that  to  hold  the  defendants  lia  le 
would  be  to  make  two  principals  in  the  contract:  that  double  liability 
occurs  whenever  a  broker  contracts  for  an  undisclosed  principal.'-^  But 
the  true  answer  to  any  difficulty  as  to  the  written  contract  is  this :  The 
contract  between  the  plaintiffs  and  defendants  is  the  contract  of  employ- 
ment, not  the  contract  of  sale,  and  the  custom  is  attached  to  tiie 
employment. 

[Blackburn,  J.  —  That  is  how  it  has  always  struck  me ;  but  then  tlio 
declaration  should  have  been  on  the  contract,  as  evidenced  by  the  cus- 
tom, in  a  count  similar  to  a  count  in  a  del  credere  commission.] 

The  court  has  full  power  to  amend.  Secondly,  the  evidence  as  to  the 
custom  in  the  colonial  trade  was  admissible  as  evidence  in  an  analogous 
trade  in  the  same  place.  In  Noble  v.  Kennoway,'^  the  contract  relatin}> 
to  Labrador,  evidence  was  admitted  of  the  custom  in  Newfoundland  tus 
to  similar  voyages  in  the  fishing  trade.  Falkner  v.  Bade ''  is  a  similar 
decision  as  to  different  or  new  ports  in  the  same  country. 

Murphy,  in  support  of  the  rule.  —  The  custom  here  contradicts  the 
contract,  for  the  name  must  be  given  on  the  face  of  the  contract,  othci- 
wise  the  broker  is  to  be  taken  as  principal ;  which  distinguishes  the 
case  from  Humfrey  v.  Dale.  Fairlie  v.  Fenton-'  is  directly  in  point  for 
the  defendants.  Secondh  ,  no  foundation  was  shown  for  the  admission 
of  the  evidence  of  the  custom  in  the  colonial  trade ;  there  was  no  evi- 
dence that  the  two  trades  were  in  any  way  analogous.     In  Noble  v. 


I  7  El.  &  HI.  266;  '26  L.  J.  (ti.  I?.)  137;  ».  c. 
In  Exchequer  Chambor,  El.  Bl.  &  Kl.  1001 ;  27 
L.  J.  (Q.  I».)  ;i(K). 

»  lliggins  V.  Senior,  s  Mee.  A  W.  834;  t'al- 
der  V.  Uobell,  L.  R.  6  C.  P.  ISO. 


a  2  Doug.  .")10 

■•  3  Hest  &  S.  360;  32  L.  J.  i,y.  B.)  124. 

"  J..  K.  5  Kxch.  169. 


m 


jts  the 

:S\ 

othei- 

i,'.' 

les  tlie 

liji 

)int  for 

i  ^^M 

iiis>i<)n 

110  cvi- 

il 

oble  V. 

ll'24. 


USAGES    OF    OTHER   TRADES. 


93 


Illustrative  Cases. 


Kennnway  the  trmlos  of  Labrador  and  Newfoundhmd  were  identical, 
both  \w\\\f  the  tishiiij?  trade.  To  hold  that  this  evidence  was  admissible 
will  l)e  to  jio  further  than  any  case  has  yet  gone. 

(;o(;K»riiN,  C.  J.  —  I  am  of  opinion  that  this  rule  must  be  discharged. 
I  quite  iit^reein  the  propriety  and  soundness  of  the  decision  given  by  the 
C.purtof  Exclie(iufr  in  the  recent  case  of  Fafrlie  y.  Fenton,  where  the 
plaintiff  cotitratted  u.s  a  broker  for  the  principal  named,  for  in  that  case 
the  principal  was  named  ;  and  I  am  of  opinion  that  the  same  principle 
would  apply  where  the  jirincipal  is  not  named,  so  long  as  it  appears  on 
the  face  of  the  contract  that  the  broker  is  contracting  as  broker  for 
a  principal.  :uid  not  for  himself  as  principal;  and  in  that  case,  also, 
the  broker  would  not  be  liable  on  the  contract  if  the  jjrincijjul  failed  to 
fulfil  his  contiactt.  But  I  think,  nevertheless,  that  the  evidence  of  the 
custom  was  admissible,  and  that  after  that  evidence  had  been  given, 
the  brokers  were  properly  held  liable  on  tlie  contract.  For,  although 
where  a  party  contracts  as  agent  there  would  not,  independently  of 
some  further  bargain,  be  any  liability  on  him  as  principal,  yet  if  a 
nian  — tliouiih  professing  on  the  face  of  the  contract  to  contract  as  agent 
for  anotiier,  and  to  bind  his  principal  only,  and  not  himself —  chooses 
to  (pialify  that  contract  by  saying  that  he  will  make  himself  liable, 
though  he  is  contracting  for  another  and  giving  to  another  rights  under 
the  contract,  he  himself  will  incur  the  same  liability  as  his  principal. 
Now,  although  where  a  party  professes  to  contract  as  l)roker  it  might 
jyrima  facie,  be  taken  that  he  contrai'ts  without  the  intention  of  incurring 
li;i!>ility  on  his  own  p;u't,  yet  if  b;,  the  custom  of  that  particular  trade 
there  is  that  qualification  of  the  contract  [which,  if  wi'itten  into  the  con- 
tract in  f.xtcnso,  would  undoubtedly  bind  him],  that  qualification  may,  I 
think,  be  imjiorted  into  the  contract  l)y  evidence  of  the  custom.  In  the 
case  of  Fairlie  y.'Fenton  there  was  no  qualifying  circumstance  like  the 
custom  in  tiie  present  case.  The  defendants  here  undou))tedly  call 
themselves  "brokers,"  acting  for  their  principal.  But  if  the  custom 
attaches,  the  non-liability  which  would,  undei'  ordinary  circumstances, 
prima  facie  exist  in  a  contract  made  by  a  person  purporting  to  contract 
as  ])roker,  ceases,  and  the  contract  assumes  a  different  form  and  char- 
;ictei',  and  carries  with  it  different  Ic^gal  coiisecjuences,  by  reason  of  the 
custom  of  the  trade,  evidence  of  which,  according  to  all  principles,  is 
admissible  to  qualify  the  terms  of  a  contract  where  not  inconsistent 
with  it. 

I  am  of  opinion,  therefore,  tliat  the  evidence  of  custom  in  the  partic- 
ular trade  was  properly  received  by  my  brother  Blackburn  to  fix  the 
liability  of  the  defendants. 


o''flKMff?<f 

■'  '!  IF' 

I',    i 

.:         '        t       '1; 


1 


i 


'  il' 


I    r 


,  ,!■ 


m 


t'l 


w 


94 


ON    THE   PROOF   NECESSABY    TO    ESTABLISH    THEM. 


Fleet  r.  Miirton. 


'    ^ 


'S   K 


I  own  I  entertain  somewhat  more  doubt  as  to  the  admissibility  of 
evidence  of  a  siniilur  custom  in  other  trades  than  in  the  particular  trade 
which  was  the  subject-matter  of  this  contract.     This  case  seems  to  me 
to  go  further  than  the  case  of  Noble  v.  Kennoway,  which  related  to  the 
admissibility  of  evidence  of  custom  in  the  trade  of  Newfoundland  as 
applicable  to  the  custom  of  the  trade  in  Labrador.     Labrador  had  been 
recently  annexed  to  Newfoundland,'  and  the  trade  in  each  was  of  tlic 
same  description,  it  being  a  trade  that  related  to  fishing.     By  the  terni.s 
of  the  contract  (a  policy  of  insnr:ince),  the  ship  was  to  be  at  liberty  to 
call  at  Newfoundl.ind,  and  it  might  be  fairly  inferred  by  perstjus  enter- 
ing into  a  contract  with  reference  to  the  trade  of  Labrador  that  wiiat 
was  the  custom  of  the  trade  of  Newfoundland  would  extend  to  the  trado 
of  Labrador.     But  this  case  goes  further.     At  the  same  time,   it  is 
impossible  to  shut  one's  eyes  to  the  fact  that  the  moi'al  effect  of  tlic 
evidence  would  operate  on  a  reasonable  mind   with  very  considerable 
force.     If  there  exists  a  custom  to  the  effect  that  the  agent  makes  him- 
self liable,  under  given  circumstances,  in  a  large  and  extensive  trade 
like  the  colonial  trade,  it  makes  it  more  probable  that  in  the  fruit  trade 
in  the  Mediterranean,  or  elsewhere,  a  similar  custom  would  obtain.     I 
am  not  quite  so  clear  on  the  point,  but  still  I  do  not  think  that  tlic 
argument  addressed  to  us  goes  so  far  as  to  show  that  this  evidence  \va> 
not  admissible.     There  is  no  doubt  that  it  would  be  useful  in  elucidnl- 
ing  the  truth;  and  therefore,  on  general  principles,  I  think  the  evidence 
was  admissible,   and  1  concur  with    the   judgment    which  my  leainel 
brothers  are  about  to  pronounce. 

Blackbuun,  J.  (after  deciding  the  first  point).  — Now,  passing  frmi 
that  point,  we  have  to  consider  whether  the  evidence  of  custom  in  tlir 
colonial  trade  was  admissible;  and  I  am  bound  to  say  tiiat  I  ckarlv 
think  it  was;.  The  objection  taken  was,  that  there  was  no  evidence  tn 
make  the  defendants,  the  brokers,  responsible  at  all.  Then  tiie  plMiu- 
tiffs'  counsel  said:  "I  will  prove  b}'^  evidence  of  persons  conneeted 
with  the  fruit  trade  that  tiie  broker,  where  he  does  not  disclose  the 
principal's  name,  makes  himself  personally  lialtle."  Tiie  plaintiffs 
accordingly  offered  evidence  to  prove  such  a  custom,  and.  to  strengthen 


'  The  disputed  territories  of  Newfound- 
land and  Labrador  were  ceded  by  the  Fiencli 
to  the  Knglinh  by  the  treaty  ol  Iftvccht,  in 
1713,  anil  thih  cession  was  finally  aflinned 
by  the  treaty  of  I'aris,  in  ITlill;  and  In  Octo- 
ber of  that  year  fjabradur  was  annexed  to 
the  government  of  Xewfoundland  by  royal 
proclamation.    In  1774,  by  U  Geo.  \il.,  c. 


83,  Labrador  was  made  part  of  the  then 
province  of  (Juebec,  and  afterwards,  in  IT'.ii, 
on  the  division  of  that  province  into  U|)|icr 
and  Lower  (Canada,  it  liecanie  part  of  tin! 
lower  province.  Finally,  In  ixoo,  by  tli  (ii<'. 
HI.,  c. '27,  §  14,  Labrador  was  roaune»eil  w 
Newfoundland. 


USAGES    OF   OTHER   TRADES. 


95 


Illustrative  Cases. 


the   thui           ;■ 

■          sibilily 

,^,  in  I7'.i>,          ;  ■ 

■ 

to  Ui>l"'i'             ■ 

I 

irt  of  ilu!             9 

■ 

jv  W  I'''".             1 

^                 '  .-iiipra,  )i 

'.y. 

iie»ti>l  to            M 

H                -  .Supra,  J) 

U2. 

tht'  evidence,  showed  that  in  the  colonial  trade  brokers  did  incur  a 
peiHonal  liability  it'  they  did  not  disc-lose  their  principal's  name.  What 
was  proved  was  this :  that  the  trades  were  very  closely  allied  to  each 
otiu  r.  All  brokers  arc  very  closely  connected  with  each  other;  they  all 
deal  with  merchants,  and  with  much  the  same  merchants,  in  the  general 
way  of  business :  and  they  buy  and  sell,  sometimes  fruit,  sometimes 
wool,  and  sometimes  other  things.  And  it  struck  me,  where  the  ques- 
tion was,  Does  a  broker  in  tlie  fruit  trade,  if  he  does  not  disclose  his 
principal's  name,  incur  a  personal  liability  in  consequence?  that  it  would 
be  proper  evidence  for  a  jury  to  consider  and  weigh  that  such  a  custom 
existed  in  other  trades,  and  that  in  those  other  trades  t.ie  broker  did 
incur  a  i)ersoual  liability.  I  think  it  cannot  be  denied  that  any  sensible 
person  would  sa}'  that  the  existence  of  such  a  liability  in  the  colonial 
tra<le  as  wjis  established  in  Ilumfrey  v.  Dale  *  would  be  very  cogent  evi- 
dence as  to  whether  there  would  be  such  a  liabilitj'^  in  the  fruit  trade. 
That  is  the  reason  —  because  I  thought  it  would  have  this  strong  bearing 
on  the  case  —  that  1  left  it  to  the  jury.  I  quite  agree  that  the  case  of 
Nobl''  V.  Kcnnoimvf  ~  bears  but  slightly  upon  the  point.  It  is  to  some 
slight  degree  analogous,  but  very  slightly  indeed,  and  there  is  no  other 
autiiority  cited  at  all;  therefore,  we  must  go  on  the  principle  of 
conunon  sense.  Tliis  point  was  not  reserved;  but  if  the  defendants  go 
to  error  on  the  other  main  point,  they  ought  to  have  leave  to  take  this 
point  also. 

Melix)k,  J.  — I  am  of  the  same  opinion.  I  do  not  propose  to  add 
anything  as  to  the  llrst  two  points,  because  I  think  they  have  been  con- 
clusively disposed  of  by  my  lord  and  my  brother  Bi.ackbitrn.  But 
with  reference  to  the  last  point,  as  to  the  admissibility  of  the  evidence 
of  the  custom  in  the  colonial  ti'ade,  which  is  a  new  point,  so  far  as  I  am 
aware,  I  think  this  case  goes  further  than  any  case  has  actually  gone ; 
yet  I  cannot  help  thinking  that  the  evidence  was  relevant  to  this  case, 
:ind  admissible  on  the  ground  that,  showing,  as  it  did,  what  was  the 
(nistom  in  other  trades.  —  though  not  so  analogous,  no  doubt,  to  the  trade 
in  question  as  was  tlu-  trade  in  Nnhlew.  Kennoway.^  —  it  tended  to  show 
the  probability  that  in  the  fruit  trade  as  well  as  in  the  colonial  trade 
llie  broker  did,  under  given  circumstances,  undertake  a  similar  respon- 

Rule  discharged. 

*  Supra,  p.  92. 


m- 


m 


96 


ON   THE    PROOF    NECKiSSAUV    TO    ESTABLISH   THEM. 


Judicial  Notice. 


NOTES. 

§50.  General  Oustoms  are  judicially  noticed.  —  General  customs  of  thft 
country  and  the  general  cu>tonis  of  mercliants  are  judicially  noticed  by  the 
courts;  having  become  a  part  of  the  law,  and  having  been  recognized  by  prior 
decisions,  subsequent  judges  are  bound  to  know  them.'  In  Grerjory  v.  Wetidpll,' 
which  was  an  action  growing  out  of  an  "option"  contract,  the  court,  after 
remarking  that  the  books  drew  many  nice  distinctions  as  to  the  right  of  a  person 
to  sell  personal  property  not  at  the  time  owned  by  him,  l)ut  which  he  intended 
to  go  into  the  market  and  buy,  said:  "Courts  must,  liowever,  from  necessity, 
recognize  tlie  methods  of  conducting  and  carrying  on  business  at  the  present 
day,  and,  applying  well-settled  principles  of  the  common  law,  enforce  wlmt 
might  be  called  a  new  class  or  kind  of  agreements,  heretofore  unknown,  unless 
they  violate  some  rule  of  public  policy."  So,  the  courts  have  taken  judicial 
notice  of  a  mercantile  custom  under  which  mercantile  establishments  furnish 
each  other's  clerks  or  customers  with  goods,  and  charge  them  to  each  otiier;  ^ 
of  a  public  usage  to  fish  in  private  ponds  unless  the  owner  has  given  pul)lic 
notice  that  it  will  not  be  allowed,*  and  of  a  church  to  keep  a  record ;  ■'  and 
courts  will  take  judicial  notice  of  the  custom  of  brokers,  as  part  of  the  gener.il 
custom  of  merchants." 

The  usage  of  "  banking  hours  "  is  said  by  Mr.  Mouse'  to  be  the  only  banking 
usage  which  has  ever  been  judicially  taken  notice  of  by  the  courts.  Tliat  por- 
tion of  the  day  in  which  only  banks  transact  business  with  tlie  public  —  gener- 
ally the  same  with  all  banks  in  the  same  city  or  town  —  is  well  understood  by  the 
public,  who  must  be  ready  within  those  hours,  and  the  courts  will  take  notice 
of  it  without  proof,  provided  the  place  is  within  their  jurisdiction;  otherwisi' 
the  hours  must  be  proved."*  Yet  a  custom  to  do  certain  acts  after  those  hours 
may  be  shown.*  And  other  customs  have  been  judicially  noticed  —  as,  the  usage 
of  b;uikcr«i  to  allow  their  depositors  to  witlidraw  their  funds  in  parcels,  and  to 
permit  thein  to  make  an  assignment,  as  by  check,  of  a  portion  of  the  amount  to 
their  credit.''' 

§  51.  But  particular  Usag'es  and  Customs  must  be  proved.  —  On  the  other 
hand,  conrt>  take  nc)  notice  of  local  and  particular  usages,  but  they  must  he 
proved,  like  other  facts,  and  necessarily  by  parol  evidence."  The  usages  of  biuiks 
in  regard  to  the  mode  in  which  current  dei)osits  and  the  proceeds  of  notes  and 


lU 


1  Davis  r.  Ilaiily,  V>  Ark.  645;  United 
States  r.  Anodoiulo,  0  I'et.  71.5. 

=  39  Mich.  ;'.:;:. 

3  Cuiiieioii  r.  IMiickman,  30  Mich.  108. 

*  Marsh  r.  (  olhy,  :Ji»  Mich.  «2(). 

5  "  We  must  take  notice  of  a  usage  so  gen- 
eral as  that  ()[  a  church  to  keep  a  record." 
Shaw,  (J.  J.,  ill  Sawyer  v.  Baldwin,  11  Pick. 
492;  Narragansett  Bank  v.  Atlantic  Silk  Co., 
3  Mete.  2S2. 

"  Jones  I'.  Peppercorne,  23  L.  J.  (Ch.)  158. 

'  Morse  on  Banks,  433. 

«  Parker  v.  Gordon,  7  East,  385;  Jameson 


V.  Switon,  2  Taun.  iii;  Hare  v.  Ifei^ty,  10 
C.  15.  (N.  S.)  tS;  Calisherr.  Forbes,  41  I,..). 
(Oh.;  "';  Salt  .Springs  National  Bank  r. 
Burto.i,  .W  X.  Y.  4:!i). 

"  Marsliall  v.  Ainorican  Express  Co..  7 
Wis.  1. 

"■  Munn  i:  Burch,  25  111.  35. 

"  Kager  v.  Atlas  Ins.  (.;o.,  14  Pick  141 ;  Cor- 
don V.  Little,  8  Serg.  &  R.  557;  Snowdcii  r. 
Warner,  3  Itawle,  101;  Smith  v.  Wright,  1 
Oaines,  44;  Ward  v.  Everett,  1  Dana,  429; 
Senac  v.  Pritchard,  4  La.  160;  Merchants' 
Mutual  Ins.  Co.  v.  Wilson,  2  Md.  217. 


BURDEN   OF   PROOF. 


»7 


One  Witness  Sufficient. 


drafts  plac(!d  with  them  for  collection  are  paid,  cannot  be  judicially  noticed,  but 
roust  be  proved.*    Nor  can  a  court  taiio  judicial  notice  of  a  custom  in  a  city,  in 
improving  streets,  tirst  to  regulate  and  grade,  and  then  to  pave,  as  separate  and 
distinct  works. - 
The  usages  of  another  State  may  be  proved  by  witnesses.* 

§52.  Burden  of  Proof  —  Customs  must  be  proved.  —  The  custom  must  be 
proved  by  the  party  setting  it  up;  the  burden  is  on  him.*  It  must  be  clearly 
proved.  "  Doubt  must  be  wliolly  eliminated  from  the  evidence  adduced,  or  tlie 
usage  is  not  well  proved."  '"  Therefore  the  custom  must  be  given  in  evidence, 
ami  may  not  be  left  to  be  found  by  the  jury  from  their  own  familiarity  with 
business  affairs.  In  a  Texas  case,*  the  judge,  in  charging  tlie  jury,  said:  "  I 
am  not  familiar  with  tliis  custom  of  merchants  in  settling  with  insurance  offices, 
or  what  are  the  liabilities  of  insurers  in  case  of  partial  loss.  I  see  on  the  jury 
planters  and  merchants,  who  doubtless  are  familiar  witli  transactions  of  this 
kind;  you  will  apply  the  rules  of  the  same  to  the  nature  of  tliis  kinJ  of  trans- 
action." The  Supreme  Court  held  this  erroneous,  because,  so  far  as  the  trans- 
action was  governed  by  law,  it  belonged  to  the  judge  to  declare  the  law,  and  so 
far  as  it  rested  on  custom,  the  custom  was  a  fact  to  be  given  in  evidence  to  the 
jury.  "The  custom,"  said  Lipscomb,  .J.,  "was  not  dependent  on  the  knowl- 
edge any  particular  juror  might  have  of  such  custom.  Tf  tliis  wore  permitted, 
each  juror  might  assume  to  know  of  his  personal  knowK-dgo  what  tlic  custom 
was,  and  no  two  of  them  agree.  If  it  was  supi)osed  that  sucii  knowledge  was 
pos.-icssed  by  any  one  or  more  of  the  jurors,  it  was  perfectly  comjiotent  to  make 
witnesses  of  such  jurors;  they  would  then  be  in  the  hands  of  each  party,  to 
ascertain  the  means  of  acquiring  a  knowledge  of  such  fact  on  the  part  of  the 
juror.  The  oath  of  a  juror  will  not  permit  him  to  find  a  verdict  on  what  lie  may 
think  he  knows,  of  himself:  oecause  then  he  would  be  passing  on  evidence 
known  to  himself,  and  not  to  his  fello-.v-jurors." 


1  ■     ■-  (%  'i 
■r   ■  M«' 


\M 


m 


\  \  vi 

m 


§  53.  A  single  Witness  may  prove  a  Custom.  —  It  has  been  much  debated 
whctlier  tlie  existence  of  a  u^a^c  m-  ■•ustom  tiui  be  -njlii-iciitiy  proved  by  the 
testimony  of  a  single  witness,  in  Wood  v.  Hickun:,''  >WvmV\i.\  by  tlio  Supreme 
Court  of  New  York  in  1829,  Sutherland,  J.,  after  disposing  of  the  case  on 
uHior  grounds,  added:  "Tlie  testimony  of  one  of  the  witnesses  that  it  is  the 
uniform  practice  of  grocers  to  cliarge  interest  on  goods  sold,  after  ninety  days, 
unless  a  siiocial  agreeineut  to  the  contrary  is  made,  does  not  amount  to  proof  of 
the  usage  of  a  particular  trade  of  which  all  dealers  in  that  line  are  bound  to  take 
notice  and  are  presumed  to  be  informed."  This  expression,  as  said  in  Vail  v. 
Ricp,'^  ai)pears  to  have  been  casual,  was  not  upon  a  point  at  issue  in  the  cause, 
and  does  not  conflict  with  the  proposition  that  the  testimony  of  one  witness  who 
has  adequate  means  of  knowledge  may  be  sufficient  to  prove  the  existence  of  a 
usage  in  a  given  trade  or  business.    Nevertheless,  in  a  South  Carolina  case  it  is 


'  Planter.s'  Bank  v.  Farmers',  etc.,  Bank, 
8  Gill  &  .J.  449. 

-  He  Walter,  75  N.  Y.  864. 

a  McNeill  V.  Arnold,  17  Ark.  154. 

*  Caldecott ».  Smythles,  7  Oar.  &  P.  808. 


Adams  v.  Pittsburg  liis.  Co.,  70  Pa.  St. 


411. 


«  Green  v.  Hill,  4  Texas,  46.'j. 
~  2  Wend.  501. 
^  5  N.  Y.  155. 


98 


ON    THE    PROOF   NECESSARY   TO   ESTABLISH    TJIEM. 


One  Wituoss  Siifliciciit. 


hold  tlmt  onc!  witness  is  not  onou^ih.'  In  Alabamn,  while  it  is  intiniatoil  in  several 
cases  that  one  witness  is  insiiflicient  to  prove  a  usage, ^  the  correct  rule  is  stated 
by  CoMiKit,  C.  .1.,  in  a  ease  decided  in  1840 :  *'  If  a  sinf?le  witness  testilles  fully 
and  (ixplieitly  to  the  exisKiiiee  of  a  usai^e,  and  is  not  contradicted  by  opposin;: 
evidence,  we  should  think  that  it  could  not  be  assumed  as  a  legal  conclusion 
that  the  proof  was  insullicient." '  And  in  anotlier  case  Stone,  J.,  said:  "We 
cannot  lay  it  down  as  a  positive  rule  that  more  than  one  witness  is  rerpiired  to 
prove  the  existence  of  a  custom  or  usage,  before  such  usage  or  custom  can 
become  an  element  of  contracts.  No  statute  has  prescribed  such  rule,  and  we 
are  not  able  to  perceive  in  the  nature  of  the  i|uestion  a  necessity  for  so  radi(!al  a 
departure  from  general  principles."*  In  an  early  case  in  the  Federal  courts,' 
Mr.  Justice  WASiii\(iroN  ruled  that  a  single  witness  was  insulticient  to  estab- 
lish a  usage;  but  there  the  discussion  seems  to  be  set  at  rest  by  the  case  of 
Robinson  v.  United  iStates,'^  decided  in  the  Supreme  Court  of  the  United  States 
in  1871,  in  which  it  is  said:  "It  is  objected  that  the  usage  was  proved  by  a 
single  witness.  But  we  cannot  assert  as  a  rule  of  law  governing  proof  of  usages 
of  trade  that  if  a  single  witness  have  a  full  knowledge  and  a  long  exjn  rience  on 
the  subject  about  which  he  speaks,  and  testifies  explicitly  to  the  auticjuity, 
duration,  and  universality  of  the  usage,  and  is  uncontradicted,  the  usage  cannot 
be  regarded  by  the  jury  as  established."  In  Thomas  v.  O'ffara,' decided  in 
South  Carolina  in  1817,  a  new  trial  was  granted  because  the  evidence  of  one 
witness  called  in  the  court  below  to  prove  a  custom  was  rejected.  In  Vail  v. 
Jiice,*^  the  court  held  that  the  usage  in  (juestion  might  be  proved  by  only  one 
witness,  remarking  that  there  was  nothing  in  the  character  of  the  fact  tliat  a 
usage  in  a  given  branch  of  trade  exists  which  renders  it  important  that  ^iicli 
fact  should  be  established  by  more  than  one  competent  witness.  Jvix  s  v.  IIoci/,'' 
decided  in  Massachusetts  in  1880,  is  to  the  same  effect;  and  in  many  other  i:ises 
the  testimony  of  a  single  witness  called  to  prove  a  usage  has  been  receivcnl 
without  objection  or  comment."*  The  weight  of  authority,  as  well  as  sound 
reason,  is  against  the  rulings  in  those  cases  where  one  witness  was  held,  as  a 
matter  of  law,  incompetent  to  establish  a  usage.  Cases  might  often  arise  in 
which  the  administration  of  justice  would  be  needlessly  delayed  if  two  or  more 
witnesses  were  inexorably  required.  When  only  one  witness  is  called  to  estab- 
lish the  fact  of  a  usage,  the  duty  of  a  court  and  jury  will  always  lead  to  an 
inquiry  and  examination  into  the  circumstances ;  and  if  his  single  testimony  is 
not  satisfactory,  it  will  not  be  allowed  to  prevail.  The  question  whether  the  tes- 
timony of  one  witness  to  such  a  fact  is  sufficient,  may  be  safely  left  in  every  case 
to  the  court  and  jury. 


ii 


§54.  But  not  if   his  Testimony  be   contradicted. — The  principal  case  of 
Parrott  v.  Thachcr^^  did  not  decide  that  one  witness  is  not  enough  to  provi^  a 


'  HiUwcrson  v.  Cole,  1  Spears,  .321. 
=  Price  V.  White,  0  Ala.  ,")6:;;  Jewell   v. 
Center,  25  Ala.4:)8;  Smith  v.  Rice,  56  AIu.417. 
a  Mtirston  v.  Bunk  of  Mobile,  10  ^Uu.  284. 
<  Partridge  v.  Forsytli,  21)  Ala.  200. 
'  Barclay  v.  Kennedy,  3  Wash.  C.  Ct.  350. 
«  13  Wall.  363. 
''  1  iVIUl  Con.-^t.  303. 


8  5  N.  Y.  155. 

9  128  Mass.  I5S5. 

">  Bis.^cll  t;.  Ryan,  23  111.  566;  Pittsburg  v. 
O'Neill,  1  Pa.  St.  342;  Sewell  r.  Corp,  1  Car. 
&  P.  372;  Citizens'  Ins.  Co.  v.  McLaughlin, 53 
Pa.  St.  485 ;  Cohoa  v.  Hunt,  2  Smed.  &  M.  227; 
Miller  e.  Insurance  Co.,  1  Abb  N.  C.  470. 

11  Ante,  \>.  95. 


!'!! 


BURDEN    OF   PROOF. 


99 


Mode  of  Proof. 


usa^io,  but  simply  nilod  tliiit  iiixlor  the  cinumstiuicfs  then;  sliown  —  there 
heiiii:  !i  conflict  on  tlie  point,  and  otlier  testimony  beins  easily  ol)tainable  to 
siipF>ort  tlie  usage  —  tlie  sinijle  witness  was  insiiUlcicnt.  Tlie  testimony  of  one 
witness  stands  until  eontnidicted;  but  tlicn,  if  Uk;  opposin;;  witness  liiis 
ei|ual  means  of  knowledin-  and  appears  (Miually  worthy  of  belief,  tlu;  burden 
of  proof  beinj:  upon  tlie  i)arty  settin;;  up  the  custom  to  establish  it,  his  proof 
must  necessarily  fail.  In  several  cases,  therefore,  the  evidence  adduced  has 
l)een  considered  as  too  contlietini;  to  establish  the  custom  endeavored  to  be; 
shown,  and  it  has  faiJed  for  that  reason.'  Therefore,  if  the  custom  is  likely  to 
be  disputed,  it  will  be  necessary  for  the  practitioner  to  have  additional  evidence  ; 
and  even  were  there  no  such  fear,  it  would  be  safer,  as  an  appellate  court  w.)idd 
probably  never  interfere  Avith  the  verdict  of  a  jury  which  liad  refused  to  ncog- 
nize  a  usage  proved  by  the  testimony  of  but  one  witness.'^ 


■  ■" 

iil 

case  of 


ttsburg  V. 
rp,  1  <'«''• 
ughliu.SS 
&M.227; 

3.  470. 


§  55.  Mode  of  proving  Usages  and  CustomB — Testimony  of  Wituesses. — 
In  considering  the  mude  of  pnjof  of  usage  and  custom,  tliere  is  a  distinction  to 
be  noted  between  those  cases  in  which  the  legal  liability  of  the  parties  is  sought 
to  be  affected  by  a  usage  of  trade,  and  those  In  which  the  object  is  simply 
to  ascertain  the  sense  in  wliich  certain  words  or  mercantile  terms  are  used 
in  commercial  contracts. 

(a.)  A  usage  of  trade  cannot  be  proved  by  the  opinion  of  witnesses  as  to  the 
law,  or  as  to  what  should  be  the  rule.  The  witness  or  witnesses  nuist  testify  to 
the  cnsti'iice  of  the  usage.  The  custom  of  merchants,  or  mercantile  usage,  does 
not  depend  upon  the  private  opinions  of  mercliants  as  to  what  th(!  law  is,  or  even 
upon  their  opinions  publicly  expressed,  but  it  depends  upon  their  acts.  The 
liKiuiry  is  not  into  the  opinions  of  traders  and  merchants  as  to  the  law  upon  a 
mercantile  question,  but  for  the  evidence  of  a  fact,  viz. :  the  usage  or  practice 
in  the  course  of  mercantile  business  in  the  particular  case.='     Therefore,  in  an 


1  Kushforth  v  lladneM,  6  East,  522;  Hol- 
derness  r.  Colliiisoii,  7  IJarn.  &  Cress.  2()2; 
Lewis  r'.  Marshall,  7  Man.  &  G.  729;  Green  v. 
Farmer,  4  Uurr.  2221 ;  Ilaskins  c.  Warren,  115 
Miiss.  .114;  Winthrop  v.  Union  Ins.  Co.,  2 
Wash.  C.  Ot.  7. 

-Thomas  v.  (iraves,  \  .Mill  Const.  1508; 
Treailway  r.  Sharon,  7  Nev.    7. 

■'  Allen  V.  Merchants'  J'.anK,  22  Wend.  45. 
"The  incjuiry  in  these  and  the  like  cases, 
however,  is  not  after  the  opinion  of  traders 
and  merchants  in  respect  to  the  law  upon 
a  given  mercantile  ([uestion,  but  after  the 
evidence  of  a  feat,  to  wit:  tbe  usage  or 
practice  in  the  course  of  mercantile  Inisi- 
iiess  in  the  particular  case.  Independently 
of  this  usage,  merchants  are  no  more  i)er- 
niillod  by  courts  to  testify  to  the  commer- 
cial law  than  other  individuals.  Their 
understanding  of  tlK!  usage  is  given,  which 
usage  may  be  the  rule  of  the  case  to  be 
decided."  Nelson,  .J.,  in  .\llen  r.  Merchants' 
Bank,  la  Wend.  4S2;  Carvick  v.    Vickery,  2 


Doug.  0.53.  "The  proposition  to  prove  the 
legal  effect  of  a  written  inslniinent  by  the 
opinion  of  merchants  is  a  novelty.  I'ossihiy 
if  these  words,  '  sailed  on  or  about'  a  given 
day,  hail  accjuired  any  meaning  in  trade  or 
commerce  dilferent  from  their  ordinary 
import,  evidence  to  that  elfoct  might  have 
been  admissible,  but  that  was  not  the 
offer."  llawes  v.  Lawrence,  i!  sandf.  llt.i; 
s.  c.  4  N.  y.  345.  "A  cuslom  must  be 
proved  by  evidence  of  facts,  and  not  by 
mere  speculative  opinions,  by  means  of 
witnesses  who  liave  had  frequcint  and  actual 
experience  of  the  custom.  The  lesiinntny 
of  those  who  speak  from  report  only,  and 
not  fn>m  parliinilar  instances  within  their 
own  knowledge  if  receivable  at  all,  is  of  no 
weight.  The  witnesses  here  do  not  speak 
of  particular  in>-tances  within  their  own 
knowledge  where  the  right  to  reclaim  goo<lR 
has  be(!n  asserted  on  the  ground  of  such 
conditional  delivery,  and  been  ac<iuiesced 
in  by  the  piucbasere.    There  is  no  evidence 


:  Am 


m 

vi 


.» 


11 


f    )• 


100 


ON    THE    I'RCXJl'    NKCKSMAUY    TO    RSTAItMKII    THEM. 


Mode  of  Proof. 


V'"  t 


i:^ 


If; 


a?*i 


early  cttsc,  a  witness  beini^  ask  mI  whefhtM-  there  was  any  jjeiieral  course  of 
business  as  to  Mie  matter  in  (lisi)Ute,  Chief  Justice  Tindai,  interrupted  him, 
sayin!^:  "  Is  tliere  any  nenural  course  of  b  isiness?  Li-t  your  mind  revolve  over 
Instances.  I  am  not  askiuK  you  whether  it  is  just  and  proper,  but  whetlier 
there  is  any  prevailing  course  of  business.  Eitlier  you  know  sucli  a  course  of 
business  or  you  do  not.  If  you  do  not,  say  so."  '  And  it  is  laid  down  in  a 
number  of  cases  tliat  a  usa;;e  must  be  proved  by  iiistaiKH-s,  and  not  by  opinions.' 
It  would,  perhajjs,  be  more  correct  to  say  that  wiiile  tiie  witness  cannot  be  per- 
mitted to  state  what  the  custom  is,  without  more, — because  such  testimony, 
on  tiie  one  iiand,  might  be  liis  Idea  of  wliat  it  should  be,  and  on  tiie  other,  might 
be  what  some  one  had  told  liiin,  and  would  therefore  be  hearsay,  —  yet,  if  hia 
knowledge  has  been  derived  from  his  own  personal  experience  of  liic  business 
in  which  it  exists,  his  evidence  will  not  be  incompetent  simply  because  he  can- 
not refer  to  partu-ular  cases  to  illustrate  his  statement  of  what  tin-  i',<a'j;c  is.* 
As  said  iu  the  recent  case  of  G'dlnp  v.  Lederer:*  "To  prove  the  cxi-t  nee  of  a 
custom,  something  more  than  tlie  judgment  or  the  conclusion  of  the  witness 
called  to  support  it  is  reiiuired.  A  custom  is  the  result  of  usage,  and  can  only 
be  properly  shown  by  proof  of  the  usage  from  which  it  may  be  cla'iued  to 
be  derivful.  The  Inquiry  in  such  cases  is  not  after  the  opinions  of  traders  and 
merchants  in  respect  to  the  law  upon  a  mercantile  'luestiou,  but  for  the  evidence 
of  a  fad,  to  wit:  the  usage  or  practice  iu  the  course  of  mercantile  Imsinuss  in  a 
parlicuiar  case."  If  this  fact  is  clear  and  fixed  iu  the  mind  of  the  witness  as  a 
fact,  and  not  as  a  mere  opinion,  there  is  no  reason  for  absolutely  insisting  on 
his  stating  any  individual  cases.  Tlierefore,  in  Hamilton  v.  Nicker  sun'  it  was 
held  that  a  witness  may  state  iiis  l)eli(!f  of  what  the  custom  is,  altlioiigh  unal)le 
to  give  any  instjiicjs  of  it.  A  cust  )ui  for  warehousemen,  in  the  abseiice  of  the 
consignee,  to  i)ay  carriers'  cliarges  in  certain  cases  being  Sv't  up,  a  witness  was 
called  to  prove  it,  who  testified  that  all  the  absolute  knowledge  he  had  on  the 
subject  was  derived  from  his  own  business;  that  he  had  been  agent  of  a  line  of 


o(  fact  —  no  evidence  that  the  purchasers 
have  iiad  frf(|Mcnt  and  actual  experience  of 
the  lu^tou) ,  .111(1  without  this  I  <!amiot  say 
the  custom  I'xi-ts."  McOoun,  V.  C,  in  Mills 
V.  Hallock,  2  lOdw.  Oh.  652. 

'  Hall  r.  Benson,  7  Car.  &  P.  7U.  And 
see  Kdie  v.  East  India  Co.,  1  W.  Black.  i\)rt ;  2 
Burr.  1216.  "  You  may  examine  witnesses 
to  prove  a  particular  course  of  trade,  or 
other  matters  in  the  nature  of  facts,  but 
not  to  show  what  the  law  is.  Nothing  could 
be  more  dangerous  than  to  fix  the  law  upon 
the  opinions  of  particular  men."  Kuan  v. 
Gardner,  1  Wash.  O.  (!t.  145;  VVinthrop  v. 
Union  IiiB.  Co.,  2  Wash.  C.  Ot.  7.  "  I'sage  is 
made  not  by  opinions,  but  by  the  usual  acts 
and  conduct  of  men  in  a  given  class  of  cases." 
Fletclicr  v.  Seekell,  1  K.  I.  2G7.  The  value  of 
services  requiring  the  exercise  of  profes 
Bional  or  artistic  skill  may  be  proved  by 
usage.  Such  usage  must,  liowever,  be 
establiahed   by  proving,  not  what  one  or 


another  of  the  particular  profession  would 
charge,  but  what  is  the  usual  or  customary 
rule  of  comi)ensation.  Pfeil  v.  Kemper,  3 
Wis.  .318. 

Bishop  V.  t!lay  Ins.  Co.,  4.5  Conn.  430; 
Itobiusonr.  Chittenden,  7  Hun,  133;  Slmokle- 
ford  V.  New  Orleans,  etc.,  U.  Co.,  37  Miss. 202; 
Consequa  y.  Willings,  1  Pet.  C.  Ot.  230;  Bry- 
ant i>.  Kelton,  1  Texas,  434;  Hagertyu.  Scott, 
10  Texas,  52,") :  Clionery  v.  Goodrich,  106  Masn. 
566;  .Mills  u.  Hallock,  2  Edw.  Oh.  liTii;  Si,?s 
wprtli  V.  Mclntyre,  18  111.  126;  Bissoll  v. 
Kyan,  23  111.566;  Cox  ij.  O'lliley,  4  Ind.  ;!(!'."; 
McClintock  v.  Lary,  23  Ark.  215;  Sycrs  •. 
Bridge,  lUoug.  509;  Haskinsf.  Wari'en,  llj 
Mass. 514  ;  Oiiuninghant «;.  Fonblanque,  tiC.ir. 
&  P.  li. 

■'  Camden  v.  Cowley,  1  W.  Black.   417; 
Insurance  Co.  r.  Weide,  11  Wall.  438. 

■  1  Hun,  282. 
13  Allen,  351. 


MODK    OF    PROOF. 


101 


Facts,  not  Opinions. 


I 


piickcts  bt'twtn-n  Niw  York  .ind  Moston  (in  which  Lit'cr  place  the  custom  was 
iillfui'd  to  exist)  tor  ii  loim  time;  tliiit  he  could  state  ulnit  tie  helievetl  the 
P'lieral  eustoui  to  be,  from  a  kuowledj^e  of  the  business  and  of  the  custom,  but 
could  not  state  imlividnal  cases;  and  tiiat  he  kn<\v  of  it  in  the  way  men  Lrener- 
aily  Kiitiier  knowlcd'.'r.  Another  witness,  in  the  same  l)usin<'ss,  was  allowed  to 
testify  tliat  he  believed  this  to  be  the  custom,  and  was  willinij  to  sw(!ar  to  his 
bi'liif.  In  the  Supreme  Court  it  was  ruled  thai  the  tesiiuiony  had  been 
properly  receivc(J.  "The  existence  of  a  custom  or  usajre  of  trade."  said 
UioKi.ow,  C.  J.,  "could  bo  proved  only  by  the  evidence  of  those  wlio  had  such 
knowledfje  of  the  practice  und  course  of  business  as  to  create  in  their  minds  the 
b(;lief  or  conviction  of  its  existence.  The  fuctam  prohandiun  was  uot  a  single 
Isolated  act  or  occurren(;e,  but  the  result  or  conclusion  derived  from  a  series  of 
similar  acts  or  circumstances,  creating  and  establishing  in  the  mind  of  the  wit- 
ness a  conviction  or  belief  of  the  complex  whole  or  eoniprelifiisive  fact  to  the 
existence  of  which  he  was  calknl  upon  to  testify.  In  such  cast;  belief  is  knowledge, 
and  constitutes  direct  and  primary  evidence.  Indeed,  the  existence  of  a  usage 
could  not  well  be  i  roveil  by  showing  particidar  instances  of  transacting  inisiness 
in  a  certain  way.  The  only  proper  metliod  of  establishing  the  fact  was  by  the 
testimony  of  witnesses  >vho  had  active  and  constant  experience  of  the  manner 
In  wliich  the  trade  was  conducted  in  relation  to  tlie  matter  in  controversy.  It 
was  precisely  to  this  point  that  the  testimony  of  the  witness  was  directed.  He 
slated  his  belief  of  the  existence  of  the  usage  as  derived  from  a  knowii'dge  of 
the  business  for  a  h)ng  series  of  years."  But  the  witness  must  testify  to  facts, 
not  to  inferences  dediiciljle  from  them.  Thus,  he  may  testify  that  such  was  iu 
fact  the  custom,  but  uot  that,  such  being  the  fact,  he  should  consider  the  custom 
BO  and  so.' 

(/'.)  Hut  the  opinions  of  merchants  or  other  persons  engaged  in  a  particular 
trade  or  business  are  admitted  by  the  courts  for  the  purpose  of  ascertaining  the 
neiise  in  wliich  certain  words  or  mercantile  terms  are  used  In  contracts.-  This 
miMiiiiig  being  ascertained,  their  opinion  as  to  its  legal  effect  is  of  course  irrel- 
evant.' In  Kirkland  v.  Niifhet,*  at  a  jury  trial  in  Scotland,  the  question  being  as  to 
the  extent  of  an  order  for  goods  given  by  the  defenders  to  the  pursuers,  which 
dejiended  mainly  on  the  construction  of  certain  cori'espond«'iice  between  the 
parties,  a  witness  was  asked  what  an  employer  "woul''  be  entitled  to  expect" 
on  receipt  of  a  iiarticular  letter  in  the  correspondence.  The  court  refused  to 
allow  the  question,  and  the  case  was  appealed  to  the  House  of  Lords.  There 
Mdiinicff  and  Rolt,  Q.  C,  for  the  appellants,  argued:  "Tli(>  'luestion  was  com- 
petent. We  wanted  to  prove  that  six  hundred  tons  of  tin'  siiuar  had  been  actually 
sold  to  us  by  the  respondents,  and  that  this  was  the  m<;aniiig  of  the  word  '  con- 
tracted,' in  the  letter  of  the  11th  of  December,  18.")0.  We  produced  a  witness 
to  prove  the  mercantile  usage,  and  ask«d  him  that  question."  Lord  Chancellor 
Campbkll:  "If  you  had  asked  the  witness  about  the  mercantile  usage,  that 
might  have  been  well;  but  how  could  you  ask  him  such  a  ((uestion  as  this :  '  What 
would  the  employer  be  entitled  to  expect  from  that  letter?'    Tliat  was  asking 


'  The  Albatross  r.  Wayne,  IGOhio,  ,'ii;?; 
Dean  v.  SwoDp,  -1  IJinn.  72. 

-  Power  r.  IIorton,'2  Hodge,  16;  Allen   i: 
Merchants'  Bank,  15  Wend.  482. 


•■  Collyei-  ('.  Collins,  17  Abb.  I'r.  4(17. 
Scotch  A|)|).   IJep.  S76.    And    Hce 
Huston  f.  Iloot.>',  30  Ind.  461. 


a 


,::  i^  i 


II 


f     5 


vn 


■  r 


ri 


I  J, 


I    ; 


■!i 


•i 


102 


ON    THIO    I'ROOF    NECESSARY    TO    ESTABLISH    THEM. 


Facts,  not  t)|)ini()iis. 


the  witness  to  explain  or  construe  a  written  docnment."  Muiicrirff  and  liolt, 
Q.  C. :  "Wliat  we  wanted  was  merely  to  explain  the  technical  meauinjj;  of  tlio 
word  '  contracted.' "  Lord  Chancellor  Cam imikix:  "  Hut  yon  must  defend  the 
question  as  put.  The  question  was,  in  substance,  '  What  is  the  meaninij;  or  just 
construction  of  the  whole  letter?  '  "  Lord  Ciif^lmsi'oud:  "  What  a  witness  in 
such  cases  is  called  on  to  do,  is  mciely  to  explain  some  technical  terms  to  assist 
the  court,  and  the  court  then  construes  the  document.  You  mij^ht  have  ask(Ml 
the  witness  what  was  the  t(H;)niical  meaning  of  the  word  '  contracted,'  if  it  liad 
any  peculiar  meaniuii.  But  you  ask  him  the  meaninji  of  the  whole  written  con- 
tract. You  are  not  to  use  the  witness  as  an  interpreter,  but  only  as  a  guide." 
Lord  Chawellor  Camimikt-L:  "You  are  not  to  substitute  the  witness  for  tlie 
judge."  Moiien'of  i\m\  Holt,  Q.  C. :  "  We  can  carry  the  argument  no  further."  Lord 
Chan(;('lIor  CAMrnioi.i,:  "  ]\Iy  lords,  I  think  that  this  (piestion  was  very  proi)erly 
overruled  by  the  learned  judge,  because,  in  effect,  it  sought  to  obtain  the 
opinion  of  the  witness  on  the  construction  of  a  written  document.  There  is  no 
doubt  that  cividence  may  be  competently  given  of  mercantile  usage  to  explain 
the  UK^aniug  of  peculiar  terms  used  in  tro.de.  J?ut  what  is  the  meaning  of  a 
written  document  is  not  a  cpieslion  propei  to  put  to  a  witness.  Tlie  question 
here  put  was  substantially  this:  What  was  the  contract  —  what  is  the  con- 
struction of  the  document?  That  was  an  improper  (piestiou,  and  I  have  no 
difflculty  in  recommending  your  lordshii)s  tn  allirni  the  nnanimous  judgment  of 
the  learned  judges  iu  Scotland  which  ovei-riiled  it."  Lords  BiunMiiiAM,  Cuan- 
woinii,  and  Cuiolmskoki)  concurred.  Therefore,  an  Kngiish  dictionaiy  is  not, 
admissible  to  show  that  a  ])artieutar  word  has  derived  a  peculiar  meaning  from 
mercantile  usage.  So,  in  Uinii/lUo)i  v  Gilhdrt,^  the  meaning  of  the  word 
"cargo"  in  a  policy  of  insurance  bcrmg  disputed,  tne  defendants'  counsel  was 
referring  to  EnticU's  Dictionary,  when  he  was  'nterrupted  by  Chief  Justice 
TiNi>Ai.,  who  said:  "It  is  a  (pieation  of  mercantile  construction.  You  had 
better  lay  aside  your  dictionary,  and  appeal  to  the  knovvhulge  of  the  jury;  for, 
after  all,  the  dictionary  is  not  authority."  .\nd  although,  as  will  be  seen  further 
on,'^  extrinsic  evidence  is  admissible  to  explain  (hjubtful  words,  or  initials,  or 
ciphers  in  a  will,  this  nnist  be  by  showing  tlie  testator's  comuion  h;il)it  of  speech 
or  writing  to  so  use  them,  and  not  what  he  intended  by  so  using  thiin.' 


§  HO.  Same  —  Adjudgred  Oasea.  — The  usage  of  trade  m:iy  be  i)n)V',M'  by  parol, 
whether  it  arises  out  of  a  jjublic  written  law,  the  edicis  or  instructions  of  a 
foreign  government,  and  whether  the  trade  be  allowed  or  prohibited  by  such 
etlicts  or  instructions.*  The  usages  of  the  land-ollice  must  be  pro\'ed  by  its 
publisluMi  decisions.''  A  I'eported  case  iu  which  a  certain  connnercial  usage  was 
held  to  be  established  by  testimony  is  relevant  in  sul)se(|uent  cases  betwicii 
other  parties,  iuvolvin  '•  a  similar  usage  at  the  s;une  time  and  place,  or  at  a  time 
and  place  net  far  remov.  d."     IaxI  it  .seems  that  this  is  not  so  where  the  decision 


>  7  C:ir.  .1  I'  TOl 

•J  I'ont,  ('li.ip.  IV. 

•  iliiiil  r.  !li)rl,:i  Ifro.  (\  C.  lilt;  IVicp  c, 
I'litijc,  4  \es.  ilT'i;  Miller  v.  Travers,  S  lliii},'. 
244;  (Uiiyton  v.  Lord  NuKi'iil,  l;!  Mi'.i'..  * 
W.  'M);  Wefillierlica<l  v.  Sewell,  !t  lIuiMpli. 
272;  Newburgti  i'.  ISewburgli,  .'i  Madil.  '2'iA; 
('liiili|ii'l  V,  Avery,  ti  Odiiii.  ;i4. 


'  f/ivingsloii  V.  Miiryliiiul  Ids.  Co.,  7 
Ci'iinch,  .VXi ;  Driike  v.  Iluilson,  7  lliir.  *  J. 
;i!in. 

■  II;  imiiouil  /■.  Wiirlicia, 'J  llur.  &,l.  l.")!. 

■  Mkn  r.  Merc-liiiiUs'  Uauk,  10  Wuiitl 
ts2. 


BURDEN    OF   PROOF. 


103 


Witncs.sLS — Order  of  Proof. 


:<\\, 


proceoded  upon  the  stipiihitiou  or  couccssioa  of  the  parties  that  the  iisa^e 
existed.'  And  the  decisions  of  State  courts  are  evidence  iu  the  Fcderiil  courts 
ot  local  u<a;;es.-  Where  a  party  relies  upon  tlie  reputation  of  a  niiniiiuc  district 
contauied  in  a  l)()ol\,  lie  must  put  in  evidence  the  whole  book,  and  cannot  offer  a 
siniJtle  extract  or  clause  aione.'' 


I         4 


§  57.  Who  may  be  called  as  Witnesses.  —  The  witness  or  witnessc's  called  to 
give  eviueuce  of  the  existence  of  a  usa^c  may  do  so  from  their  own  knowledge 
and  experience,  or  from  information  derived  throuy;li  the  course  ot  trade.'  All 
that  is  necessary  is  that  they  should  have  occupied  sucii  a  position  as  to  know  of 
its  existence  as  a  fact.  Therefore,  a  custom  tliat  the  emi)loyment  of  an  jirchitect 
to  make  plans  and  tlosi-^ns  for  a  buildini;:  carries  with  it  an  employnnmt  to 
superintend  its  construction,  m;iy  be  proved  by  builders  or  contractors  as  well 
as  by  arcliitects;  ■'  to  prove  a  custom  ax  to  adjusting  losses  oi'  [jolicicss  on  iron, 
insurance-brokers  as  well  as  iron-men  bants  are  competent ; '■  to  prove  a  usage 
of  banks,  one  who  is  in  the  lial)it  of  dealing  with  banks  is  as  capable  to  ex|ilain 
these  usages  as  a  banker  oi'  a  bank  employee.' 


I  ! 


iMi; 


^58.  Order  of  Proof — Proper  Questions. — \7hen  a  witness  is  interrogated 
as  to  a  cu.-tom,  the  object  and  pertinency  of  tiie  proof  should  ]n\  Hrst  shown, 
either  by  the  nuisiion  itself  or  indejiendently,  in  order  that  the  court  may 
understand  its  relevanc>  .**  Either  party  may  giv(?  evidence  of  a  custom  witiiout 
aci'()m|)aiiyini;'  it  with  direct  evidenc.'e  that  it  was  known  to  the  opposite^  piii'<y» 
provided  he  intends,  on  all  the  evidence  to  be  produced  in  the  case,  to  show  that 
knowledge.'  Hut  strictly,  the  proper  order  being  to  prove  the  usage  first  and 
tin-  notice  afterwards,  evidence  of  the  usage  may  well  be  excludeil  when  the 
party  offering  it  does  not  intimate  his  intention  to  follow  il  oy  |)roof  of  knowl" 
I'lliic  of  some  kind,  cither  express  or  presumptive.'"  To  ask  a  witness  how  a 
certain  kind  of  business  is  done,  — as,  lor  example,  the  usuiil  mode  of  transferring 
notes  and  drafts  from  one  bank  to  anothe; ,  -  is  not  asking  a  question  of  law.  It 
is  a  mere  matter  of  fact,  and  the  legal  .'fr-.,.  jf  doing  the  business  in  tlie  manner 
(iiscribed  by  him  is  another  and  a  different  (juesliou."  Where  a  witness  was 
ii-sked,  "Do  you  know  of  an;i  usage  or  custom  in  the  life-insurance  business  as 
to  the  comnnlation  of  nuiewals?"  it  was  said  on  appeal  that  the  proper  form 
would  have  been,  "What  is  tlie  gen<'ral  or  unixcrsal  usage  and  custom  in  the 
lite-insurance  business  as  to  the  eominntiition  of  n'uewals?  "  '^  A  custom  cannot 
be  proved  by  a  witness  stating  tliat  it  is  the  "custom  of  the  country,"  nothing 
being  sliown  as  to  its  extent  or  tlie  length  of  time  it  has  existed." 


I  Croucli  c.  t'leiiit  iMiiuior,  f..  K.  S  (.).  It. 
;!74. 

-  Swift  V.  Tyi<oii,  16  IVt.  1;  Cariiontcr  i: 
I'niviiliMicc  Ins.  Co.,  Iti  Put.  nil;  Mcaile  v 
Beiilo,  Taney's  Dee.  X».). 

Kui:\i>\\  r.  .Johnson,  lyCul.  107. 

'  Allen  /•.  Muichant,-'  Hank,  l.".  Woml.  ISi. 

^  Wi.-on  r.  Maniuan,  HO  HI.  i'.i;i. 

'■  Kvan.i  V.  ConuniM-cial  Ins.  Co..  0  U.  I.  47. 


■  (;rinin  r.  Hicu,  1  Hill.  ISl. 
■*  Krkei- I'.  Moore,  a  Ciiantl.  85. 
^  Dodtje  r.  Kavor,  If)  (Jray,  S'2. 
1"  Klynn  c.  Min-pliy,  2  K.  !>.  SnilDi.  ;t78. 
"  ConnneriMal    Uank    c.    Union    Uank,    19 
Uarii.  :'M. 

I-  Park  r.  I'ieilinonl ,  elc,  Ins.  Co.,  ■l«  Ga. 
tiUl. 
'''  Kendall  r.  Uuh.scII, 0  Oauu,  rioi. 


! 

ij  1 

■  I 


104 


ON    TIIK    rUOOF    NECESSAKY    T(»    ESTABLISH    THEM. 


Quiiiitum  of  Evidciico  —  Law  and  Fiict. 


11  j 

pi 

i:! 

!! 

r;i 


r 
i, 


§  59.  Quantum  of  Ev  dence.  —  It  is  not  necessary,  in  order  to  prove  a  valid 
custom,  tlial  all  the  wit,  ies<es  on  both  sides  of  the  ciise  should  agree  concern- 
iiiii  it.  They  may  differ  as  to  its  existence  In  the  same  place  or  in  all  places,  and 
in  such  case  the  ((uest  ion  is  one  for  the  jury.  But  if  one  set  of  witnesses  prove 
tliat  they  knew  of  and  follow  d  a  certain  custom  in  some  localities  and  as  to 
some  contracts,  and  another  set  show  that  there  was  no  such  custom  in  other 
localities  and  as  to  otlier  contracts,  and  none  of  tliem  state  that  this  custom  is 
notorious,  the  evidence  simply  shows  a  custom  local  and  partial,  and  is  insuf- 
ficient.' If  plaintiff  and  defendant  introduce  evidence  of  different  usages,  tlic 
refusal  of  tlie  court  to  rule  tliat  if  the  evidence  is  conflicting  tlie  defendant 
cannot  maintain  his  defence  on  the  ground  of  usage,  gives  the  plaintiff  no 
ground  of  exception,  if  the  defendant  relies  upon  his  evidence  of  usage  i 

negative  tlie  usage  set  up  by  the  plaintiff.'  In  a  Missouri  case,  Wagnkk,  J., 
commented  on  the  evidence  offered  to  prove  a  usage,  as  follows:  "A  large  mass 
of  evidence  was  introduced  to  show  a  custom  among  the  merchants  that  the 
effect  of  the  order  was  to  vest  tlie  title  of  the  Hour  in  the  purchasers,  and  tliat 
from  the  tiuie  the  card  was  handed  over  to  them  they  became  the  absolute 
owners,  and  tliat  tlie  transference  of  tlie  same  to  tlie  plaintiff  divested  the 
defendant  of  all  interest.  But  tliis  brancli  of  the  case  wa^  not  made  out.  There 
was  great  diversity  among  the  witnesses  as  to  the  force  and  meaning  of  the  sup- 
posed custom,  and  so  far  from  tending  to  establish  any  open,  uniform,  and 
notorious  rule,  the  most  of  the  witnesses  restricted  themselves  to  declaring 
what  their  individual  opinions  were,  and  the  obligations  they  should  have  dettmed 
resting  upon  them  had  they  been  placed  in  the  defendant's  situation.  Tliis,  of 
course,  was  all  illegal,  and  should  have  lieen  excluded.""' 

Newly  discovered  evidence  of  a  custom  in  violation  of  the  jniblic  laws  of  the 
State  is  no  ground  for  a  new  trial  .^ 

§  00.  Law  and  Fact.  —  Proof  of  a  usage  or  custom  iavolves  questions  of  both 
law  and  tact,  ft  is  a  ((uestion  of  law  what  is  a  sufflcient  usage  to  bind  the 
parties  .  for  how  long  a  time,  at  wliat  places,  and  witli  what  degree  of  uniformity 
it  must  have  been  observed;  whether,  in  short,  a  given  s'^jite  of  facts  establishes 
a  usage,  is  a  question  for  the  coiirt.'^  Whether  such  a  >tate  -.jf  facts  has  heim 
proved  is  a  (|uestinn  for  the  jury,"  :nid  also  whetlier  the  parties  acted  with  rcf- 
ereii('(>  to  the  usage.'  On  tin  otlicr  hand,  the  reasonableness  of  an  alh'ged 
custom  is  a  (|uestion  of  hiw  for  the  cfcirt,'*  and  it  is  error  to  sul)mit  it  to  the 
jury."  An  erroMeon<  ,iiliug  excluding,  as  immaterial,  evidence  of  a  custom  is 
cured  i^y  a  charge  to  tlu^  jury  recognizing  a  general  custom  of  the  character 
sought  to  be  proved.'"    Where  evidence  of  usage  is  given  to  control  th'    con- 


'  Oickhisnn  c.  City  of  Poinrhti'^i't'sic.  TS 
N.  Y.  06. 

''  Upton  ('.  Sturhridgc  (jOttoii  Mill.-,  lii 
Mass.  44(t. 

^  Sontli  Wi'steni  Freight  .t  (!otio-  •  TrcBS 
Co,  V.  Staiiard,  44  Mo.  7'. 

*  Lyncs  c.  Tlic  suite,  ■Ifi  (;.•(   20^. 

''  OhiciiKK  I'iiclon^r  Co.  c.  Tilton  ,S7  Til  .vis. 
UiltHCd  Wilson  r.  Uuuiuiiii,  .''O  11'.  4');i. 

'•  Mflar.'  V.  Waplu.H,  1  llousi.  {,•1;  Bryee  r. 
Till  Kinpress,  3  West.  I..  .1.  17 1. 


'  rowell  f.  BrndlecO  <!ill  iV  J.  220;  liiir 
ron(.rtis  c.  I.anjtiey,  Id  M<1.  'MS. 

>^  lloiirkt'  r.  Kiii'i^l:iii(l,4  .Mich.  .'JHO;  Mu.-iw 
V.  KaKle  lliiiik,  !•  Mote.  IJOO;  .Smith  r.  Tyson, 
1  I'er.  H  |);iv.  liO". 

»  Coilniivn  c.  Armstroiiit,  js  Mcid  ;  iiiind.ill 
l>.  Smith,  i>;t  .Me.  10,").  .See  ISodll-ili  v.  Fox,  2;! 
Me.  '.Ill, 

1"  Clark  I'.  Cox,  ;W  Mich.  204. 


HUFIDEN    OF   PKOOF. 


105 


Kvidcnce  of  Different  Customs. 


struction  of  a  written  instruiiK'nt,  the  jury  are  to  dctcnnino  its  fffect.'  But  the 
question  in  many  cases  is  one  of  extreme  difnculty;  whether  a  ()arti(Milar  custom 
lias  hecn  tacitly  included  in  or  ex<'lude(l  from  a  written  contract,  is  a  question 
purely  leirai.  "We  take  it,"  said  the  court,  in  Lewis  v.  Marshall,'-  "that  the 
acknowlediied  distinction  is  this:  if  the  evidi-nce  offered  at  the  trial  by  either 
party  is  evidence  by  law  admissible  for  the  determiuation  of  the  question  before 
a  jury,  tlie  julije  is  bound  to  lay  it  before  them,  and  to  call  upon  them  to 
liccide  upon  the  effect  of  such  evidence  when  offered.  Whether  that  evidence  is 
of  that  character  and  description  which  makes  it  admis>ible,  is  a  question  for  the 
(letefniinati(m  of  the  judge  alone,  and  is  left  sol'ly  to  his  decision."  And  when 
the  jury  have  decided  on  the  meaning  of  the  terms  by  the  assistance  of  the 
usage,  it  i.s  still  for  the  court  to  construe  the  entire  contract  or  document.* 

§  til .  Evidence  of  Customs  at  different  Places  or  In  other  Trades.  —  An  im- 
portant question  here  arises  as  to  whether  evidence  of  a  custom  at  a  difft'rent 
place  is  admissible  as  beariu';;  on  the  question  of  a  custom  at  the  locus  in  i/W).  It 
was  an  ancient  and  well-established  rule  that  the  custom  of  one  manor  could  not 
be  given  as  evidence  to  prove  tiie  cusiom  of  anothei,  because,  each  manor  having 
customs  peculiar  to  itself,  such  evidence  would  be  both  unsafe  and  useless.* 
But  in  an  early  English  ca«e  it  was  distinctly  laid  down,  that  to  prove  the  manner 
of  conchKUing  a  particular  branch  of  trade  at  one  place,  evidence  may  be  given 
to  show  the  manner  in  which  the  same  branch  is  carried  on  at  another  place. 
This  principle  was  announced  in  a  case  decided  in  the  King's  I5en<-h  in  1780, 
where,  on  a  policy  of  insurance  on  a  vessel  from  Knglaud  to  Lalirador,  the 
goods  having  been  seized  by  a  privateer,  the  question  arose  wludher  there  had 
l)een  any  uniu'cessary  delay  in  landing  them  at  Labrador.  The  ijlaintiffs,  in 
order  to  show  that  there  had  Ixh'U  no  such  delay,  called  witnesses,  who  proved 
that  according  tothecus,om  in  Newfoundland,  goods  were  Jicpt  on  lujard  the 
vessels  several  months  in  some  cases.  Lord  Manskiulo  havim:  admitted  the 
evidence,  the  case  went  to  the  fidl  bench,  where  his  ru!ing  was  sustaiued.  "  The 
defendant  says,"  said  Lord  Manskikm),  "  the  plaintiffs  have  been  guilty  of  an 
unreasonable  delay  in  landing.  That  question  was  to  be  tried  by  the  jury,  and 
could  only  be  <lecided  by  knowing  the  usual  practice  of  the  trade.     *     *  K 

Is  well  known  thai  the  tlshery  is  tlu  'bjeet  of  the  voyage,  uiid  the  same  .sort  of 
fishing  U  carried  on  in  the  same  way  at  Nen-foundland.  f  still  think  the  evi- 
dence on  that  subject  was  p.'ojierly  admitted  to  show  tbe  nature  of  the  trade, 
^he  point  is  not  analojjous  to  a  (juestion  concerning  a  comnton-law  custom." 


hi--ny 
liiul.'ill 


'  Dawson  v.  Kittle,  4  Hill,  107;  Goodyear 
r,  On.li;n,4  Hill,  104. 

7  Miin.  i^i,  (i.  729.    \n<\    see    I'arker  v. 
Ibbetson.-t  C.  B.  (n.  s.)  ;Ut>. 

'  Hutchisim   r.  Itdwker.  5  Mne.  &  W.  5;i5; 
Xellsim  v.  Hiirfdnl,  s  vIim;.  it  \V   ^0(i. 

'  Dane's  Al)r..  i-liap.  'ill,  §  10;  .\n«lcscy  c. 
Hathertdii,  10  Mce,  *  W.  ais.    Under  a  ens 
toni  for  all  the  iiilidbUants  »(  a  imristi,  a  |m!i- 
•on  will)  rents  a  teniMuent  within  the  imrlsli 
which  lu!  nsi's  occustioniilly,  but  i;i  which  he 
(lot's  noi  aciuully  icnIUl',  i-  iiK'huleii.     Fitcli 


r.  Kitch,2Esi).  M3.  But  evidcnco  of  a  ( ii>- 
ton)  to  pcrambnlute  'he  buiinclarieH  of  a 
parish  is  not  sullioicnt  U>  suiiiiori  uu  alle 
jration  to  peianihiilale  llir  lioiiiidaries  of  a 
lil)(!rty.  Grunt  r.  Kc.iiney,  IJ  Price,  7";v 
Wlicic  a  eusioni  is  pnivoil  to  exist;,  it  will 
extend  to  all  tenancies,  in  whutevui'  way 
created,  whether  verbal  or  m  wrilinjj,  iin 
less  exftressly  or  iiuplieilly  exclnded  by  the 
written  tcrni.s  thp«»«olves.  Wilkin- r,  Woml, 
'.•i  .Inr.  .'iS,!;  17  L  .).  (Q.  H  ,  UlU;  KvanH  n. 
'•Kdvie,  '.'  Von.  &  J.  79. 


Bvi  i' 


Irth 


U'iiii- 


106 


ON    THE    PKOOF    NEUESSAUV    TO    ESTABLllSll    THEM. 


Evidence  ot  Diftoront  Ciisfom.s. 


BuLLKK,  J.,  added:  *'  [f  it  can  be  shown  that  the  time  would  have  been  reason- 
able in  one  place,  that  is  a  degree  of  evidence  to  prove  that  it  was  so  in  another. 
The  effect  of  such  evidence  may  be  talvcn  off  l)y  proof  of  a  difference  of 
ciicumstances.  It  is  very  true  that  the  custom  of  one  manor  is  no  evidence  of 
the  custom  of  another.  That  has  been  determined  in  many  cases.  But  the 
point  here  is  very  different;  it  is  a  question  concerning  a  particular  branch  of 
trade." '  In  Plaice  v.  Allnock,'^  the  defendants,  who  were  l)leachers  at  Nottinghfini 
claimed  a  lieu  on  certiin  of  the  plaintiff's  hose  which  had  been  sent  to  them  to 
be  bleached,  under  an  alleged  usage  in  Nottingham.  In  order  to  support  their 
demand  the  defendants  proved,  by  the  evidence  of  bleachers  and  hosicsrs  carrying 
on  business  there,  that  it  was  the  custom  of  bleachers  in  Nottingham  to  retain 
all  goods  sent  to  be  bleached  until  they  were  paid  all  previous  accounts.  In 
addition  to  this,  bleachers  carrying  on  business  at  Loughborough  were  called  to 
support  the  usage.  Macaulatj,  for  the  defendants,  objected  that  the  course  of 
business  at  Loughborough  had  no  tendency  to  prove  a  custom  of  tra'le  at 
Nottingham.  Field,  for  the  plaintiffs,  proved  that  Loughborough  was  only  four 
miles  distant  from  Nottingham;  that  Loughborough  hosiers  were  in  the  habit  of 
sending  their  goods  to  be  bleached  at  Nottingham,  and  that  Nottingham  liosiers 
also  sent  l',\eir  gooils  to  be  bleached  at  Loughborough;  and  he  contended  that, 
by  reason  of  the  vicinity  o*'  the  places  and  the  interchange  of  trade,  the  evidence 
was  admissible.  Wir-ucs,  J.,  ad'nitted  it.  And  in  the  recent  case  of  Fleet,  v. 
Alurfon,^  the  custor;  of  a  different  market  was  admitted.  Tiie  court,  altlioiigli 
it  had  some  doubt,  .-.eeing  that  the  rase  went  furtlKU*  than  Noble  v.  Kennovjinj, 
decided  that  it  was  admissible,  on  th(^  general  principle  that  it  would  be  useful 
iu  elucidating  the  truth,  and  because,  in  the  words  of  Blackuukx,  J,,  "it  struck 
me,  where  the  qnestion  was.  Does  a  broker  iu  the  fruit  iratle,  if  he  does  not 
disclose  his  principal's  name,  iuciir  a  personal  liability  in  conseciucnce?  that  '.t 
would  be  proper  evidence  for  a  jury  to  ccnsidcr  and  weigh  that  such  a  custom 
existed  in  other  trades,  and  that  in  thos-t  other  trades  the  brokers  did  incur  a 
personal  liability."  So,  in  FalMnerv.  Earle*  it  appeared  that  there  was  a  cus- 
tom Ml  Liverpool  of  allowing  a  discount  of  three  months  on  freight  payable  on 
all  bills  »f  lading  from  i)t)rts  iu  North  America,  and  that  when  Texas  was 
annexed  to  the  United  States,  in  184(1,  the  custom  was  extended  to  ports  in  tluil 
territory,  and  it  was  held  tliat  this  wa>;  evidence  from  whicli  a  jury  might  iufrr 
that  the  custom  extended  to  ports  in  California,  after  that  country  had  been 
annexed  to  the  United  Stales. 

The  .Vmerieau  courts  have  been  less  liberal  in  admitting  this  sort  of  evidence, 
being  apparently  mere  afraid,  of  eueroaching  upon  some  te(!huical  rule  tluui 
desirous  of  elucidating  the  whole  truth.  It  was  announced  l)y  Fi.AN'HitAt;, 
J.,  in  a  Minnesota  case,  that  "  it  is  only  in  some  exceptional  cases  tlmt  proof  of 
a  usage  in  one  place  is  allowed  to  show  that  it  existed  in  another,"''  but  with- 
out saying  what  those  cases  were.     So,  in  Delaware,  it  was  said  by  Giliun,  J.: 


'  N(>l)lo  I'.  lu'unowp.y,  1  Doun.  nio.  Sec 
also  .Mihv.'iril  r.  Ililil/crl,  :;  Q.  1!.  I'^JO,  wlicro 
it  was  lii'M  tiiat  a  plea  of  a  eiistoin  of  traile 
iu  LoikIdii  iui.^lit  bu  Kupiiorted  by  proot  of 
a  cusioin  pruvailiiix  iu  l^unduu  aixl  oilier 
Knglixh  iMirts. 


•-'  4  Fost.  &  Fin.  1074. 
■>  Ante,  p.  iW. 

<  ;i  Ui'st  &  s.  :!(iO. 

<>  Walker  v.  Hairon,  (1  Minn.  508. 


CUSTOMS    CONSTRUED    STRICTLY. 


107 


Illustrations. 


"It  (Iocs  iiDt  follow  that  because  a  custom  or  usase  is  recognized  as  oblis;atory 
in  Pliiladelphia  or  New  York,  that  it  is  recoijnizotl  as  such  in  Baltimore  or  New 
Orleans,  or  lias  any  force  or  effect  in  these  latter  cities.  The  custom  or  usaii'e 
ill  one  Slate  may  not  be  the  same  in  another.  The  States  of  tlie  Union,  in  regard 
to  comiiii'rcial  |)iirposes,  stand  in  the  relation  of  foreij^n  States  toward  each 
other,  so  that  a  custom  or  nsai^^e  in  one  State  is  not  necessarily  biiuliiitf  or  obli- 
tjatory  upon  persons  riiiiaiied  in  the  same  trade  in  another  State."  '  In  Maryland 
it  is  held  that  an  in>iirance  licy  on  a  vessel  boin-i,-  built  in  Baltimore  is  not 
altVcteil  by  a  u-aiic  existiiiL'  \ew  York;  ^  in  Illinois,  that  a  custom  of  bankers 
as  to  checks  in  New  York  cannot  affect  the  general  law  in  (^tliiu"  places;-'  in 
Massachusetts,  that  a  usajje  of  underwriters  in  Boston  to  expressly  except 
barratry  of  the  master  from  risks,  whenever  the  assured  is  tlie  owner  of  the 
vessel  hiMiiod,  cannot  import  this  exception  by  implication  into  a  policy  written 
ill  (il(Alc^'^ter ;  *  and  in  Camden  v.  Doremus,''  that  evidence  of  asxein'i-al  custom  of 
banks  to  irive  notice  to  the  payor  of  the  time  notes  fall  due  is  adiiiissilile  upon 
tlic  practice  of  the  particular  bank  at  which  the  note  in  ciucstion  is  payal)le. 

On  the  other  hand,  it  is  held  in  an  Alabama  case''  that  proof  of  a  ;iencral 
ciisloiii  Miiioirj;  mechanics  and  .artisans  in  a  I'ity,  whereby  journeymen  and 
eiiinloyees  are  required  to  work  for  their  einpioyers  only  a  certain  number  of 
Iiuiiis  a  <Kiy,  and  ai'e  allowed  the  privilcice  of  working  for  themselves  at  other 
tiiiiis,  is  competent  evidence  to  be  submitted  to  the  jury  as  tendiu;^  to  show 
tlic  fxi-tciice  of  such  a  custom  amouu;  dagnerrotypists,  amlirotypists,  and  photo- 
:ii;ipli  paiiUi'i'>,  whose  occupations  also  belong  to  the  iiieciianical  arts. 

lint,  where  the  custom  in  one  place  is  proved,  evidence  that  it  is  different  in 
.•ninthcr  is  inadmissible; '  and  therefore  it  was  neld  in  MichiLfan  that  proof  of  a 
usage  at  an  insurance  agency  at  one  place  in  the  State  was  not  relevant  on  the 
fiuestion  of  the  practice,  of  au  agent  at  another  place,  he  having  testitied  that 
his  [u-actice  was  different.' 


^mmm 

1        n:-  -5 

:        •:    i 

F  Mm 


m 


§11'.'.  Customs  must  be  construed  strictly.  —  One  of  the  principal  rules 
governing  common-law  customs  was  that  all  customs  in  derogation  of  the 
CDiniiion  law  were  to  be  strictly  coif^trued.*  Mr.  Buowni',  says:  "There  is 
always  a  presumption  against  a  thing  while  it  is  oiil,\  in  the  making,  and  a 
prcsiiiiiplion  in  favor  of  the  thing  which  is  made.  There  is  a  deep  truth  in 
Milton's  remark,  that  error  is  only  truth  in  the  making,  and  couscipiently  it  is 
well  to  pronounce  against  a  custom  which  is  the  making  of  law,  in  favor  of  a 
hwv  which  is  recognized,  acknowle<lged,  and  made.  Now,  this  doctrine  of  strict 
coiistnictioii  i^  a  deference  to  this  presumiition.  Thus  it  comes  that  although 
by  the  custom  of  gavelkind  an  infant  of  lUlecn  years  may,  by  a  deed  of  feoff- 
nii'iii,  convey  away  his  lands  in  fee-simple,  this  custom  would  not  be  held  to 


'  (iilpin,  V.  J.,    in    Atoiir'^    v.    \\u\i\e»,  ;3 
Housl.SSl. 

-  Mason  r.  Franklin  lii>.  L'o.,  Vi  liill  .t  .). 
4(W. 

sii-fin;;  r.  K'lig,  :'>ri  111.  It. 
'  rarkliin>t  v.  Gloucu.-lur,  olc,  In.^.  I'o., 
m  Mii.'ts.  .;01. 
3  llow.  515. 


•i  HarncH  v.  Ingall»,:i'.)  Ala.  !'.•:!. 

■  Allen  V.  Lyle.s,  .ir)  .Mis.s.  .-)i;!. 

"  Itnynolds  v.  IJonlirKintal  In.s.  Co.,  !56 
Midi.  l;tl.  .\nd  see  Nalrlicz  Ins.  Cn.  v.  sum- 
ton,  'J  .Sinud.  &  M.  UK). 

■  UiclijirUsou  ('.  Walk;'!-,  i  ISuia.  &  Cross. 


tl 


urvf. 


i  ?l  ^ 


1^   ' 

{111 

if 

t 

,'   ,t 

\  ■ 

r   J.-     ; 

1 ' 

1 

I 

■  'K 

i 

\i 

10b 


ON    THE    PROOF    NECESSARY    TO    ESTABLISH    THEM. 


Customs  Construed  Strictly. 


entitle  liim  to  effect  the  same  thinjL?  by  any  other  conveyance.  Such  a  rule  is 
contrary  tc-  the  common  law;  and  altliouirh  its  having  become  a  rule  is  an  indi. 
cation  that  it  must  hav(!  had  a  reason,  the  fact  that  the  rule  of  the  comniou  law 
is  different  proves  that  there  was  a  reason  for  the  diverse  custom  whicli  is  thus 
shown.  The  rational  way  of  dealinj^  witli  such  a.  i^ase  is  to  ,i;ive  effect,  as  far  as 
possible,  to  the  latent  reason  which  is  in  both;  and  hence  the  rule  of  construc- 
tion to  which  we  have  alUuled.  Thus,  where  there  is  a  custom  that  lands  shall 
descend  to  the  eldest  sister,  the  courts  will  not  extend  the  authority  of  this 
custom  to  include  an  eldest  niece.'  Where,  however,  there  is  a  custom  in  a 
manor  that  a  man  may  convey  his  copyhold  in  fee-simple,  that  will  not  be  held 
to  prcc'.ude  him  from  conveyini^  it  for  life,  for  in  such  a  case  the  lesser  right 
must  be  held  to  be  included  in  the  greater;  and  it  was,  therefoi'e,  here  said  that 
although  customs  must  be  strictly,  they  need  nut  necessarily  be  literally  con- 
strued." '  And  so  it  is  said,  in  Archer  v.  B<A(')ihain,"-  that  customs  are  lo  be 
construed  "strictly,  —  nay,  very  strictly,  —  even  stricter  tlian  any  act  of  Parlia- 
ment that  alters  tiie  common  law." 

So  of  usages  of  trade  —  nothing  will  be  presumed  to  be  within  them  which 
they  are  not  proved  to  cover.  A  custom  of  delivering  goods  to  a  mate  of  a  ship 
will  not  excuse  a  delivery  to  a  deck-hand,  or  leaving  th(;m  near  the  ship  in 
charge  of  no  one ; '  a  custom  for  passengers  on  a  boat  to  i)lace  their  baggage 
thereon  without  notice  to  the  officers  will  not  protect  one  who  does  not  accom- 
pany a  trunk  which  he  leaves  in  this  way,  and  who  is,  therefore,  not  a  "pas- 
senger;"'' a  carrier's  usage  being  to  give  notice  of  the  arrival  of  goods  at  the 
consignee's  store,  .le  is  not  obliged  to  seek  him  elsewhere;"  a  usage  of  a  bank 
teller  to  issue  certificates  of  deposit  does  not  tend  in  any  way  to  prove  a  usage 
for  him  to  certify  checks; '  a  usage  showing  when  a  voyage  is  at  an  end,  so  far 
as  the  payment  of  premium-notes  is  concerned,  cannot  be  introduced  to  show 
■when  a  voyage  terminates  as  regards  the  payment  of  lo^•ses ;  **  a  usage  of  a 
captain  of  a  boat  to  sign  bills  of  lading  for  articles  flolivLra'jle  at  one  port  is  no 
proof  of  authv^rity  to  sign  bills  of  lading  for  a  different  port;  *  a  custom  giving 
to  brokers  a  certain  I'ommission  will  not  help  a  middle-man,'"  or  one  who  is  not 
strictly  a  broker;  "  a  custom  of  hardware  merchants  will  not  be  extended  to  help 
cominissi()i\  merchants;  "  and  a  usage  as  to  the  term  of  employment  of  travelling 
snicsuicn  cannot  affect  u  |);'ity  employed  on  a  share  of  th<  protils  of  his  ,saU"<.'^ 
Where  a  policy  of  insurance  prohibits  the  insured  from  keeping  on  the  premises 
certain  specilii'd  dangc  ous  .irMdes,  the  custom  of  the  insured  to  keep  such 
articles  on  the  premises  is  immaterial,  unless  at  the  time  of  tiie  Ure  they  wlto 
actually  there.'* 


'  Demi  f.  Spray,  1  Term  Kt'ii-KKi;  Muggle- 
ton  r.  BiirnPtt.  '1  Hurl.  A  N.  653. 

-  1  Coleridire's  151a.  7!t. 

a  11  Modern,  \m. 

*  lje^)\  r.  Smith,  1  <'ar  &  F  «{8;  Packard 
■w.  QetiMin.  <i  Cow.  '."i". 

f'  WriKliI  c.  Ciildwel!    .1  Mich.  n\ 

«  Kly  c.  .New  Haven  -ic:iml)o;ii  Co.,  5S 
Barti.  'iOT. 

7  Mubsey  >■.  Kagle  Buuk,  9  i'\Ietc.  .m. 


•■  Mcigs  V.  :MiiIu;i1  .Marine  Ins,  Co., 2  Cll.-li. 
4:?». 

"  Nichols  c.  DeWolf.  I  I'.  1.277. 

'    iCiipp  «'.  Sam|i.s(Mi,  It)  (iray,  3!>8. 

''  Canby  r.  Vrifk.  -  Md.  l(i;i;  Main  r.  KukI'-'p 
1  K.  I>.  Siiiilli,(ll'.i. 

Kicid  c.  linnkoi ,  ii  IJosw.  ■11)7. 
DiUc  r.  I'ool,  I,")  Minn.  ;!l.''i. 

'•  Maiyland  Fire  Ins.  Uo.  r.  Whlteford,  ;ll 
Md.  il\). 


CUSTOMS    CONSTKUEU    STRICTLY. 


109 


Illustrations. 


A  usage  cannot  act  rt'tnisin-ctivt'ly.'     A  usage  or  custom  which  is  disregarded 
in  a  court  of  law  cannot  bo  rogarrlfd  as  a  rule  of  action  in  a  court  of  equity. - 

In  a  South  Carolina  case  it  was  held  that  the  custom  of  a  railroad  to  allow  its 
contractors  to  pass  up  and  down  on  their  cars,  with  their  tools,  materials,  etc., 
free  of  cost,  could  not  be  extended  so  as  to  bind  the  company  to  pay  the 
expenses  of  its  contractors  on  a  road  belonging  to  another  and  different  com- 
pany. "  There  is  a  wide  difference,"  said  Richardson,  J.,  "  between  a  railroad 
allowing  their  contractors,  as  it  may  be  convenient,  to  pass  up  and  down  in 
tlieir  regular  trains  of  cars,  when  there  is  room  to  spare,  and  the  paying  for 
their  passage  on  other  railroads.  The  formtsr  is  an  accommodation,  without 
positive  loss.  The  latter  would  be  an  assumption  to  pay  the  debt  of  another, 
wliich  requires  a  valuable  consideration.  It  would  be  very  liice  a  friend  who, 
being  in  the  habit  of  using  your  liorse  gratis,  should  undertake  to  hire  a 
I'orse  anil  charge  the  hire  to  you.'"  But  in  New  York,  where  it  is  the 
en-it om  at  a  port,  U[)oii  the  sale  of  grain  being  made,  that  the  purchaser 
selects  a  measurer,  and  the  measurer  so  selected  is  appointed  by  the  board  of 
nic:i^nrers  to  perform  the  duty,  it  is  decidetl  tiiat  where  the  measurement  is  in 
fait  made  by  a  measurer  ai)pointed  by  the  board,  the  custom  is  sufficiently 
complied  with,  and  it  is  immaterial  whether  the  measurer  is  selected  by  tlie 
seller  or  purchaser.'  A  custom  of  the  ale  trade  to  credit  the  vendee  with  ale 
wlii(!h,  on  delivery,  was  found  untit  for  use,  it  was  lield,  would  not  apply  to  ale 
shipped  from  Chicago  to  Montana.  "  It  is  most  unreasonable,"  said  the  court, 
"  to  make  a\iy  application  of  this  usage  to  ale  shipped  to  this  distaat  Territory, 
exposed  to  delays,  and  sul)jecl  to  every  variety  of  carriage."  ^  Evidence  of  a 
custom  of  boats  to  carry  bank-bills  for  customers  in  order  to  obtain  their  pat- 
ronage, is  insutricient  to  establisli  a  custom  of  carrying  bank-bills  for  hire." 

in  a  recent  Iowa  case,"  an  employee  of  a  railroad  company  sued  the  latter  for 
damages  for  injuries  received  while  operating  its  road.  The  circumstances  were 
these:  The  plaintiff  was  riding  on  a  consti'uction-train,  consisting  of  several 
flat-cars  and  a  caboose,  the  latter  being  the  rear  car.  Tlie  train  was  near  a 
station,  where  it  was  to  remain  until  the  ne.vt  day.  The  caboose  was  to  be  put 
upon  a  side-track  upon  one  side  of  the  main  track,  and  the  rest  of  the  train 
upon  a  side-track  upon  the  other  side.  The  caboose  was  cut  off  while  the  train 
was  in  motion,  with  tin-  design  of  stopping  it  upon  the  main  track,  and  after- 
Avards  jilacing  it  upon  the  sidij-track.  The  train  was  in  charge  of  one  O.,  who 
(li;l ached  the  caboose,  the  movement  of  the  train  having  been  slackened  for  that 
purpose.  <).  stood  at  the  door  of  the  caboose.  Having  detached  it,  he  signalled 
to  the  engineer  to  increase  speed,  which  resulted  not  only  in  tiiking  up  the 
slack,  but  in  a  slight  jerk.  The  plaintiff  wcs  standing  upon  the  flat-car  from 
which  tlie  caboose  had  been  detached,  near  the  rear  end  of  the  car.  The  jerk 
ciiiised  hiin  to  lose  his  ecpiilibriiini,  and  in  stepping  rearward  to  regain  it,  he 
fell  off  ami  was  ruu  over  by  the  caboose,  vvhicli  was  following  not  far  behind. 


'  Uniiott  siivtcs  V.  Buchanan,  Crabbe,  .-)63. 
■  MoiTl.son  V.  Hiivt,  .;  Itibb,  4. 
•  -'olcock   V.    I.diiisville.    eir.,    U.    Co.,    1 
Stmbh,  329. 

'  McUreadyi'.  Wright,  .S  Dii<;i',  571. 


''  Legg-    '    '^ii    ■>    Ale  Brewing  Co.,  60  111. 
158. 

"  ('hoiitcaii  r.  The    Anti-onv,   16  Mo.  216; 
20  Mo.  .'■ilo 

.letlrev  i .  Keokuk,  etc,  U.  Co.  (Sup.  Ct. 
Iowa,  June,  1879). 


'I'm 


m 


I '  Is 


I.''i 


l1i' 


i^fl''SiHi"]HBi'''r!g 

i 

Ji 

110 


ON    THE    J'ROOF    NECESSARY   TO    ESTABLISH    THEM. 


Customs  Construed  Strictly. 


One  of  his  legs  was  crushed,  and  amputation  was  made  necessary.  He  alle<;c(l 
that  O.  was  iiejilijient  in  (•..■iiisins?  the  sudden  forward  movement  of  tlie  train 
without  givin}?  warnin<r.  On  tlie  trial,  the  plaintiff  was  permitted  to  give  evi- 
dence of  a  custon.  or  rule  of  the  company  proliilitting  "  runuing-switclies," 
But,  as  wliat  had  been  done  was  not  strictly  making  a  **  runninii-switch,"  the 
Supreme  Court  held  that  the  evidence  was  incompetent  and  sliould  liave  been 
excluded.  "The  rule,"  said  Adams,  J.,  "certainly  was  inadmissible  unless 
there  was  evidence  tendin;;  to  show  tliat  it  was  violated,  and  tliat  the  accident 
occurred  by  reason  of  tlie  acts  by  wliich  it  was  violated.  The  only  object  of 
introducing  the  rule  must  be,  to  make  that  negligence  which  but  for  the  rule 
and  the  violation  of  it  would  not  be  negligence.  Where  an  act  is  such  as  to 
constitute  negligence  of  itself,  independent  of  any  express  rule  and  its  violation, 
there  can  be  nothing  gained  by  proof  of  the  rule  and  its  violation.  Whetlier  an 
act  which,  of  itself,  falls  short  of  constituting  negligence  can  be  held  to  be  neirli- 
gence  by  reason  merely  of  its  being  a  violation  of  an  express  rule  of  the  crni- 
pany,  we  need  not  determine.  It  is  sufficient  to  say  that  the  evidence,  we  thiniv, 
does  not  show,  or  tend  to  show,  a  violation  of  the  rule  in  question.  The  rule 
prohibits  '  running-switches.'  But  what  was  done  was  not  done  in  makinir  a 
'running-switch,'  nor  with  the  view  of  making  one.  The  caboose  was,  to  be 
sure,  to  be  placed  upon  the  side-track,  but  it  was  to  be  stopped  upon  the  main 
track,  and  drawn  upon  a  side-track  by  an  engine,  which,  according  to  the  evi- 
dence, is  precisely  not  a  '  running-switch.'  A  '  running-switch  '  would  have 
been  effected  by  cutting  off  the  caboose  while  the  train  was  in  motion,  ami 
causing  it,  while  detached  from  the  engine,  to  pass  upon  the  side-track,  liie 
locomotion  resulting  from  the  momentum  acquired  by  the  caboose  while  in  tiie 
train.  This  is  undisputed.  But  it  is  said  that  what  was  done  is  the  same  rliin.: 
as  what  is  done  as  a  preliminary  step  to  making  a  '  running-switch  '  —  thai  is, 
the  caboose  was  cut  off  while  the  train  was  in  motion,  and  was  allowed  to  fol- 
low. But  the  evidence  tends  to  show  that  the  danger  which  makes  a  '  runnini,'- 
switch '  especially  objectionable  occurs  when  the  -ictual  switching  takes  phue. 
If  the  plaintiff  relies  upon  something  as  constituting  negligence  which  would 
fall  short  of  negligence  but  for  an  express  rule  of  the  company  and  its  violation, 
he  must  show  an  actual  violation." 

§  63.  Conflict  of  Laws.  —  Wiicre  a  contract  is  drawn  at  a  place  where  both 
parties  reside,  such  iinibiguities  as  it  may  contain  are  to  be  construed  bylht' 
usage  of  that  place.'  "Tlie  general  rule  then  is,"  says  Stoky,  "that  in  tin 
interpretation  of  contract,  *he  law  and  custom  of  the  place  of  ttie  contract  arc 
to  govern  in  all  cases  wliere  the  language  is  not  directly  expressive  of  the  aetunl 
intention  of  the  parties,  but  it  is  to  be  tacitly  inferred  from  the  nature  ami 
objects  and  occasion  of  the  contr.ict.''  *  ♦  *  By  the  law  of  Kugland,  a  month 
means  ordinarily  in  common  contracts,  as  in  lease's,  a  lunar  moiitli,  but  in  mer- 
cantile contracts  it  means  a  calendar  month.''  A  contract,  therefore,  made  in 
England  for  lease  of  land  for  twelve  months  would  mean  a  lease  for  forty-eijiht 


'  Whart  on  Oonll.,  §  434;  Story  on  Confl., 
§  '.'(i:i  (citiiifi  Watson  v.  Brewster,  1  Harr,  ;!81 ; 
Allshousev.  lianjsay,  (i  Wliart.  lilU;  Iteunor.s 
V.  Clemens,  .^s  l»a.  St.  '24;  IJaltimoie,  etc,  K. 
Co.  V.  Gleun,  28  Aid.  287j. 


2  Story  on  Contl.,  §  JT.'. 
'(;atesl.j'B    Case,  (1  Coke,  02;    Lacuii  i;. 
riooiiei,  0  Term  Hep.  224. 


EM. 


■y.     He  allejicd 
lit  of  the  Iniiu 
tod  to  yive  cvi- 
nni;-s\vitclies." 
i<I-switch,"  the 
Duld  have  been 
missible  unless 
lilt  the  acoiclont 
i  only  object  of 
)ut  for  the  rule 
ct  is  such  iis  to 
nd  its  violation, 
m.     Whether  an 
held  to  be  m'^W- 
rule  of  the  C(nn- 
dence,  we  think, 
istion.    The  rule 
one  in  maldnij  a 
lOOse  was,  to  be 
d  upon  the  main 
rdiiijl  to  the  evi- 
ich '  woultl  have 
<  in  motion,  and 
le  side-track,  the 
)ose  while  in  tlie 
is  the  same  thin',' 
Jwitcb  '  —  that  is, 

s  allowed  to  fol- 
liakes  a  '  runnin;;- 
liing  takes  place. 
ince  which  would 

and  its  violation, 

)lace  where  both 
construed  by  Hie 

|{Y,  "that  in  the 
the  contract  are 

l.sive  of  the  actual 
the  nature  and 

iHuiiland,  a  mouth 

lonth,  but  in  mer- 
lliorefore,  made  in 
[se  for  forty-eight 

•„ke,  02;    I-'Con  o. 


CONFLICT    OF    LAWS. 


Ill 


Illustrations, 


weeks  only.     A  promissory  note  to  pay  money  in  twelve  months  would  mean 
in  one  vcar,  or  in  twelve  calendar  months.'      If  a  contract  of  either  sort  were 
re(!nin'd  to  be  enforced  in  a  foreign  country,  its  true  interpretation  must  be 
evervwhere  the  same  —  that  is,  according  to  the  usage  in  the  country  where 
the  contract  was  made.    Tlie  same  word,  too,  often  has  different  signitlcations 
in  (liffeniut  conutries.     Tims,  tlie  term  '  usance,'  which  is  common  enough  in 
neiiutiabio  instruments,  means  in  some  countries  a  month,  in  others  two  or 
more  months,  and  in  others  half  a  month.     A  note  payable  at  one  usance  must 
be  construed  everywhere  acconliug  to  the  meaning  of  the  word  in  the  country 
where  the  contract  is  made.     There  are  many  other  cases  illustrative  of  the 
same  principle.     A  note  made  in  Kngland  for  £100  would  mean  £100  sterling. 
A  like  note  made  in  America  would  mean  £100  in  American  currency,  which  is 
one-fourth  less  in  value.     It  would  be  monstrous  to  contend  that  on  the  English 
note  sued  in  America  the  less  sum  only  ought  to  be  recovered,  and,  on  the  other 
hand,  on  the  American  note  sued  in  England,  that  one-third  more  ought  to  be 
recovered."  '^    When,  however,  one  of  the  parties  is  a  foreigner,  the  question 
arises  whether  he  knew  of  the  local  usage,  and  intended  to  accept  it  as  part  of 
his  contract.''    But  if  a  contract  to  be  performed  in  England  was  executed  by 
two  Eniilishmcn  travelling  in  America,  the  law  of  the  place  of  performance, 
and  not  that  of  the  place  of   contract,  would  govern.''    Where  a  contract  is 
entered  into  by  correspondence,  then  the  usage  of  the  place  of  the  writer  who 
first  employs  the  controverted  terms  must  be  followed  to  explain  tliern,  although 
this  was  not  the  place  where  the  contract  was  closed,  because  the  party  who 
first  introduces  these  terms  is  supposed  to  do  so  in  the  sense  with  which  he  is 
tamiliar.'    Bnt   where  there   is  a   place  of   performance  whose   language  and 
usaires  the  parties  meant  to  adopt,  then  such  language  and  usages  must  prevail. 
Thii>,  when  money  is  to  be  paid,  or  goods  delivered,  or  lands  conveyed  in  a 
foniiin  country,  then  the  currency,  weights,  and  measurements  of  such  foreign 
co'.ntry  are  to  be  the  standards:  lirst,  because  such  is  presumed  to  be  the 
intention  of  the  parties;  and,  second,  because  generally  there  will  be  no  other 
currency,  weights,  or  measurement  in  such  country  by  which  the  contract  could 
be  [jerfornied."     So,  wlu'rc  a  contract  was  entered  into  in  London  for  the  load- 
ing of  a  cargo  at  Trinidad,  it  was  held  that  it  was  to  be  construed  by  the  usages 
of  the  port  of  Trinidad.' 

In  Star  Glass  Company  v.  Morfy,^  a  contract  made  in  Boston  with  a  manufac- 
turer of  window-glass  in  I'hihKhdphia  for  the  purchase  from  him  of  glass  there 
nianufaelured,  or  to  be  manufactured,  and  its  delivery  there  to  a  carrier,  referred 
for  the  designation  of  sizes  of  tire  glass  and  as  to  the  basis  of  prices  to  cards 
issued  by  the  manufacturer,  wKliout  special  reference  to  the  Boston  market.  It 
was  held  that  if  tliere  was  a  difference  in  the  local  u-ages  of  the  two  places  as 
to  the  standard  of  measurement  or  the  mt)de  of  cutting  the  glass  so  as  to  lit 


'  1An^  V.  Gale,  1  Mau.  .t  Sel.  HI ;  Coekell 
]'.  tiruy,  ;t  15i'(i(l.  &  15.  Is; ;  l.iiliugwull  v. 
Wliitc,  1  Johns.  Cas.  '.Hi. 

'-  story  on  Oond.,  §§  'JTO,  '271. 

a  Whan,  on  Contl.,  §434. 

<  Ihid. 

»  /d.,§435. 


"  Whart  on  Contl.,  §  437  (citinp  Rosetterw. 
Cahlniari,  8  Kxi'h.  'JOl ;  Stapleton  v.  Conway, 
3Alk.  7-27;  De  Wolf  u.  JoUnson,  10  Wheat. 
3'2;;;  Clayton  c.  (Jregson,  5  Ad.  A  E.  .'!0'2). 

■  Outhbertv.  CiiniMiiiifj,  11  Exch.  405.  And 
Bee  (ircavus  v.  Legg,  11  t^xch.  644. 

»  108  Mas.s.  570. 


m 


\4 

.  ■  'i 

4 

'•  .\ 


1 11 


I      hi  M^ 


'I 


n 


ii 

m 


II 


}  f 


112 


ON   THK    PROOF   NECESSARY   TO   ESTABLISH    TIIKM. 


Plcadinj;. 


the  corresponrtiag  sizes  of  sash,  and  no  provision  was  made  us  to    this  in  tlie 
contract,  tiie  usage  at  Piiiladelpliia  would  j^overn. 

Where  a  veudee  of  laud  dcniauds  a  deed  with  customary  coveuants,  what  is 
customary  Is  determined  by  the  lex  rei  aitae.^ 


r\ 


Mi  h 

ii  I 


m  i 


1    ■ 

!.■■■ 

^t' 

1 
1 . 

§  04.  Pleadlngr-  —  A  general  usage  or  custom  need  not  be  pleaded,  but  may  be 
given  in  evidence  at  the  trial,  or  judicially  noticed  by  the  court  for  the  tlrst 
time  on  appeal.-  But  the  custom  of  a  particular  place*  and  local  commercial 
usages  must  be  pleaded;  and  so  of  a  custom  to  excuse  the  non-performance  of  a 
duty  proscribed  by  law.*  Where  a  local  usage  is  set  up,  all  the  requisites  of  a 
valid  usage  should  be  averred; '-'  but,  as  one  who  deals  with  brokers  is  presumed 
to  deal  with  reference  to  their  usages,  in  a  complaint  by  a  broker  against  his 
principal  it  is  not  necessary  to  allege  that  the  latter  knew  of  the  existence  of  it 
custom  on  which  the  action  is  founded;  *  and  in  a  suit  on  a  writing,  where  cer- 
tain incidents  are  attached  by  usage-,  the  usage  need  not  be  specially  pleadeil." 
Where  a  complaint  alleges  title  in  tlic  i)laintiff,  it  may  be  supported  by  evidence 
of  mining  customs,  even  though  they  are  not  mentioned  in  the  pleadings.  A 
usage  is  not  sufflciently  pleaded  by  a  single  avermi-nt  that  it  has  been  constantly 
and  uniformly  recognized  and  abided  by  in  a  certain  city  in  similar  cases.'  In 
an  action  for  goods  sold  and  delivered,  evidence  of  a  usage  of  trade  wliich 
gives  the  purcliaserarigiit  to  revoke  the  contract  when  the  article,  which  appcnrs 
to  be  good,  is  sold  as  good,  but  turns  out  to  be  rotten  and  nearly  worthless,  is 
not  Mdmissible  under  an  answer  which  does  not  allt  ,e  that  the  sale  has  been 
revoked."*  In  New  York,  evidence  of  usage  is  admissible  under  the  general 
denial." 


'  (Jault  V.  Van  Zile,  :57  Mich.  22. 

3  Coyle  V.  Gozzler,  2  (ininrh  C.  Ct.  B25; 
Goldsmith  v.  Sawyer,  Mi  Cal.  •20'.);  Temple- 
man  V.  Biddie,  I  Ilarr.  (Del.)  .52»;  Stultz  v. 
Dickey, 5  Binn.'285;  Carson  «.  Blazer, '2  Binn. 
476.  As  to  pleading  customs  in  England,  see 
Hawkins  v.  Wallis,  2  WiUes,  173 ;  Tewkesbury 
t>,Bricknell,l  Taun.  142;  Morewoodr.  Wood, 
4  Term  Rep.  157 ;  GrilHn  v.  Blandford,  Cowp. 
62;  Peter  v.  Kendall,  6  Earn.  &  Cress.  703; 
Paddock  v.  Forrester,  :i  Man.  &  Q.  903;  3 
Scott N.  R.  715. 


3  Governor  d.  Withers,  5  Gratt.  24;  .Task- 
son  V.  Ht'nderson,  3  T..ciKli,  19(!. 

'  (iovoriior  ?'.  Willit!r>,  .I  (ir:in.  21. 

''  Wallace  v.  Morgan,  2'.  Ind.  :i'M;  Diitfh, 
etc.,  Co.  v.  Mooney,  12  Cal.  5;U. 

«  Whitehouse  r.  .Moore,  13  Abb.  I'r.  112. 

'  Lowe  V.  Lehman,  15  Oliio  St.  179. 

8  (dolman  v.  Clements,  23  Cal.  215. 

»  Antoniarchi  v.  Russell,  (13  Ala.  35(i. 

")  Ilight  V.  Bacon,  12G  Mass.  10. 

"  Miller  v.  Insurance  Co.,  1  Abb.  N.  ('.  470. 


1        I 


!■  i; 


CHAPTER     HI. 

ON   TMKIB  VALIDITY   AND   EFFECT    IN    DIFFERENT   RELA- 
TIONS  AND   OCCUPATIONwS. 


15. 

16. 


ILLUSTRATIVK   C/V8E8  :  — 

10.  licnne.v  v.  Bunk  of  Columbia.  —  Banks  and  bankiiiii,  and  nenotiuljle 

and  assij^nablo  paper  —  Usages  as  to  demand  and  notice. 

11.  (inrdon  v.  IJUIp..  —  Ooninion   carriers  —  Usasies   resjardinu  tlieir 

jjfeneral  liability ,  and  the  meaninj;  of  terms  in  bills  of  ladinn. 

12.  Farmers  and  McrJinnicH^  Bank  v.  Ckamplaia  Triiisportation  Com- 

pany. —  Same  —  Usages  excusing  notice  of  arrival  of  goods. 

13.  BuUdey  v.  Derby  FiKhiiig  Campanij.  —  Corporations  —  Usages  con- 

trary to  charter  i)o\vers. 

14.  Harper  v.  City  Insurance.  Company.  —  Fire  insurance  —  Customary 

use  of  prohibited  article-s. 
Walsh  V.  Homer.  —  Marine  insurance  —  Usage  may  t'xcuse  a  de- 
viation. 

Wigglesworth  v.  Dnl/ison.  —  Landlord  and  tenant  — Custom  as  to 
waygoing  crop. 

17.  Ilolcroft  \.  Barhcr. —  Master  and  servant  —  Usage  as  regulating 
tej'm  of  service. 

18.  Waring  v.  Grady.  —  Partnership  —  Powers    of   partner    may  be 
enlarged  by  usage. 

19.  (rooilcnow    V.    Tylnr.  —  Principal    and    agent  —  Usage    govern.s 
agents'  powers. 

20.  Jones  v.  Bowden.  —  Vendor  and  purchaser  —  Usage  as  to  war- 
ranty. 

21.  Conner    v.  RiMnxnn.  —  Saiuf  —  Usage  as   t«>    measurement    and 
weight. 

22.  Kxterly  v.  Cole.  —  Same  —  Interest  charged  by  custom. 

23.  Priestley  v.  Pratt.  —  Same  —  Custom  as  affecting  i;liange  of  pos- 
ses.sion. 

NOTKS:       1.    BANK3  AND  BANKING,  AND  NKGOTIABLK  AND  ASSIGNABLE  PaPKR. 

§  (k").  Bank  ofBcers  —  Powers  of,  as  affected  by  usage. 
fit;.  Same  —  Power  to  certify  cliecks. 

(i7.  Same  —  Proper  officer  to  receive  payments  or  tleposits. 
G8.  Hanks  — Negotiable  paper  —  Usage  as  to  demand  and  notice. 
f)!t.  S;ime  —  Demand  always  necessary. 

70.  Same  —  Discordant  decisions. 

71.  Usage  and  days  of  grace. 

72.  Duties  of  bank  a.'-  collecting  agent. 

73.  Payment  by  bank  m  \-i  be  in  good  money  — Usage. 

«  (113) 


^1 


^  ■ill 


4      VA 
■.:■:■! 
♦  .  '■  ••SI 


r'\ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


/. 


1.0 


I.I 


11.25 


121   125 


K 


»"    116      111 

Mi.   mm 

!^       140 


2.2 


2.0 


^  IIIIIJi& 


Hiotographic 

Sciences 

Corporation 


23  WIST  MAIN  STRUT 

WHSTH.N.Y.  M580 

(716)  872-4S03 


'6^ 


V 


iV 


:\ 


\ 


-  <o 


^V" 


Yj 


^ 

\ 


^ 


O^ 


1H 


IN    DIIFKREiVT    KKLATIONS    AND    OCCUPATIONS. 


Conti'iits  of  Chapter. 


NoTKs:  ij  74. 
75. 
70. 
i' . 

II. 

§78. 

79. 

80. 

81. 

82. 

83. 

84. 

85. 

86. 

87. 

88. 

8!). 

90. 

91. 

92. 

93. 

94. 

95. 

9(i. 

97. 

98. 

99. 
100. 
101. 
102. 

III. 

§  io:j. 

104. 
105. 

inii. 

107. 
IV. 

§  108. 
lOi). 
110. 

.      111. 
112. 

ii;5. 

114. 
115. 


Sami!  —  Payment  of  forijod  {;h«'<;k. 

Note  voluiitjirily  cut  in  two —  Usage  to  pay  only  lialf. 

Bank  —  Bonn  fide  holder. 

Past-due  negotiable  paper  —  Kquitlea. 

Common  Carriers. 

Liability  of  carriers  created  by  custom. 

Delivery  of  goods  to  carrier  ;i  ■  <i)iitr<)llrd  by  usage. 

Delivery  of  baggage  by  passenger. 

Usage  must  be  strictly  followcil. 

Complete  delivery  not  altered  by  us'.ge. 

Liability  for  property  while  in  transit. 

Stiiwai'c   (f  good.s  as  affected  by  custom. 

Deliv     -  t  y  carrier  as  controlled  by  custom, 

Delivei^  by  carrier — Continued. 

Notice  rcfM'i.'i  by  law,  but  waived  by  usage. 

Cases  wh.       I'  :  alleged  custom  did  not  control. 

Canmit  p'  *^-  .-'=  igaiust  express  directions. 

Delivery  1. 1.  prohibited  days. 

Means  for  de'.very. 

Usage  may  enlarge  carrier's  duty. 

Complete  delivery  not  affected  l)y  usage. 

Kxpress  companies  and  delivery  by. 

Same  —  Cases  where  usage  did  not  control. 

Same —  Usage  permitted  to  relax  their  obligations. 

Connecting  carriers. 

The  carrier's  charges. 

Power  of  carrier  to  sell  goods  in  his  charge. 

Tlie  carrier's  lien  as  affected  by  usage. 

Bills  of  lading  and  re-itrietive  contracts. 

Statutory  exemptions  cannot  be  waived  by  usage. 

CoUI'Olt.VTIONS. 

Tlie  ^^nclent  doctrines  concerning  corporate  capacity  and  assent 

as  affected  by  usage. 
Ollli'crs  and  agents  of  corporations. 
Contracts  not  according  to  mode  prescrilied  —  Usage. 
Lieu  of  corporMlion  on  shares  of  stockholder. 
Transfer  of  stock  — Notice. 

INSIIJANCK. 

Usages  in  the  law  of  Insurance. 

^fr,  .Vrnouid's  'our  rul(;s. 

Kvery  general  usage  prima  facie   part  of   the  policy — Marino 

Insn ranee. 
Commeneeinent  :uid  end  of  risk. 
Deviation. 
General  average. 
KxtenI  of  the  policy. 
Apporilonmeiit  of  premium  -  Adjustment. 


1 


IN    OIFFKIIKNT    UKLMiONS    ANI>    OCCUPATIONS. 


115 


Contents  of  Chapter. 


Notes;    §  IHi.  oiIkt  ciisfs. 

117.  Every  ii^eneral  usiv^i!  priiiui  f(ici<' \y,\n  of  thr  policy  —  Fire  insur- 

ance. 

118.  Customary  incidents  of  tlu>  business  insured, 
liy.   Increase  of  risk. 

120.  Cluinf^es  in  adjoining  premises. 

121.  Amount  of  loss. 

122.  Payment  of  losses  —  Mutual  companii  s. 
12a.   Keiusurance. 

124.  Life  insurance — Payment  of  premiums  —  Policy, 
12.").  Other  cases. 


!;^  I 


.'  i  I'j 


Mr' 


V. 

^  12(1. 
127. 
12S. 
i2;t. 

lao. 

131. 
182. 

i:!;t. 
VI. 

las. 
lati. 

137. 
VII. 

§  lan. 

lait. 

14(1. 
141. 

Vlll. 
S  112. 

14;!. 

H4. 
14.'). 
140. 
147. 
148. 
149. 
150. 
151. 
152. 

l.W. 
154. 


Lanih.oki)  a.\i»  Tk\.\nt. 

Customs  in  the  law  of  landlord  and  tenuut. 

.■\s  to  the  "  \vay}!;oing  "  crop. 

Other  customs. 

,Vs  to  term  of  tenancy. 

Kxplainin*;  terms  in  lease. 

.\s  to  tlxtures. 

Not  admissible  to  contradict  lease. 

When  lease  not  inconsistent  with  custom. 

Masti'I!  an'I)  Skkvaxt  —  Emi'loyhr  a.\i>  Employes. 

As  to  terms  or  conditions  of  .service. 

As  to  the  iiroper  i)erforniaiice  of  a  service. 

As  to  want's  and  compensiition. 

Contract  not  wholly  performed  —  Quantum  meruit. 

Pahtvkkship. 

Powers  of  partners  may  depend  on  custom. 

Usa;re  as  to  name  of  Urn). 

Common  report  cannot  prove  a  partncr-liip. 

lint  usage  may  be  controlling  as  to  third  persons. 

I'lilNt  H'AI,   and    AciKNT. 

.\v'cucy  must  be  executed  in  accordance  with  uuage. 

Authority  of  agent. 

Usages  of  the  stock  excluiuge. 

Delegation  of  agent's  authority. 

Power  to  sell  on  credit. 

Power  to  pledge  goods. 

Insurance  of  goods  iu  hands  of  agent. 

Payment  to  agent. 

Payment  —  Set-off. 

The  agent's  compensation. 

The  accent's  compensation,  continued  —  The  rules  of  law  as  to, 

cannot  be  overthrown  by  usage. 
Usiiire  e^iiniot  "X(!use  a  disregard  of  instructions. 
Liability  of  principal  ami  agent  on  conliacts. 


^  m 


.-.?■ 


<  '\ 


I: 


i;i. 


I 


I* 


IIG 


IN    r)II"FEKKNT    RKLATIONS    AND    OOfUP VTIOVS. 


IJcmiiT  I).  Miink  of  Colninhiii. 


Notes:  §155.  Attorney  and  client. 

IX.   VKNIXm  ANI>  ri:u<ii\.sKR. 

1 5(».  Usages  of  trade  affecting  sales. 

157.  Terms  of  sale  —  Price  —  Credit. 

158.  Thii  ruUi  caveat  emptor  —  Warranties  on  sales. 
15!>.  Warranty  of  soodness  —  Coutiuiied. 

1«0.  Warranty  —  Sale  by  sample. 

Ifil.  Warranty  —  Sales  by  manufacturers. 

KiL',  Pledgeor  and  pledgee. 

1G3.  Sales  by  auction. 

164.  Rescission  of  contract  i)y  buyer. 

1(15.  Delivery  of  goods  —  Passing  of  title. 

H>(i.  Payment. 

1(J7.  Interest  —  When  allowed  by  cu.stom. 


X.  Mi.scKi,i,.iNKC)rs. 


1G8. 
Hi!). 
170, 
171. 
172 
17:». 
174, 
175 
170. 
177, 
178, 


The  questi(»n  of  negligence  as  affected  by  distoni. 

Same  —  As  affecting  t!»e  dutie.s  of  common  carriers. 

Same  —  As  affecting  ihe  question  of  diligence  in  otln-r  bailmtMiti. 

Same  —  As  affecting  Mie  contributory  negligence  of  ;i  servant. 

i   istonis  to  excuse  negligence  rejected. 

Same  — To  show  a  uui.sance. 

Frauds. 

Trespass. 

Use  of  watercourse;*. 

Ofllces  and  officers. 

Crinitis. 


10.     BANKS     AND     BANKING,     ANU     NKUOTiABLK     .\M>     ASSIi  ;N  AMI.K 
PAPER  — USACiKS   AS   TO    DKMANl)    AN1>   Ni  •  1  ii  K 


Renner  v.  Hank  of  Columbia.* 

In  the  Supreme  Court  of  the  United  States.  Fehrnari/  Term.  IS'Jf. 

H<n\.  .TonN   Maksii.vi.i,,  Cliirf  Justici'. 
"     MiisiiuoD  Washington,   ; 
"     W'.i.MAM  Johnson,  i 

«'         TllD.M.VS    T(tl)I>, 

«'     (i.uiKiKi.  Duval, 
"     .losKi'H  Stoky, 
«'     Smith  Thomp.son, 


|-  Aiif'w'inlr  .hiatiri's. 


A  custom  on  the  (tart  of  ttll  the  baiikH  i>f  a  |iartii>uliir  plnoe  in  iti-in,'iii>l  |i:iyiiieal  ami  givA 
notioo  to  iiiilorsurH  of  ii(!K<>tlalile  paper  on  tlie  fourth  <l  ly  of  ^{iMi'e  i-  It.iiditiK  on  .im 
indoraer,  If  known  to  him. 

♦  Kepoitoi'J  Wlient.  5»i. 


BANKS    AN1>    BANKING. 


117 


Illustrative  CasL's. 


rm-  (•;ni«.i' \v;i-.  ;iri:iH'<l  'tv  Wihsfpr  and  .ffiiies  foi  tlic  plaintiff  in  t'nor. 
:iii(l  A'''//  I'll'  the  flctViidaiits  in  ciror. 

iii()Mi's<»\,  J.,  rlfliviTi'd  the  oiiiniori  of  tlu'  cfMirt. 
I'lii^.  case  cunics  up  on  a  writ  of  vvvor  to  tlic  Ciicnit  Court  of  tin* 
Di'-trict  of  roliinilii:i :  and  by  t!io  rccui'd  it  appeals  that  the  action 
ill  till'  conrt  lii'lotv  was  prosecuted  atjaiiist  IJeinier,  the  plaintiff  in  error, 
as  indiiiscr  of  a  promissory  note  drawn  hy  .lanjos  Foyh's  and  discounted 
at  tlie  Hank  of  C'ohnnliia.  Tiie  note  liears  date  on  tlie  ninth  day  of 
.laiiiiary.  If^l7.  for  S4. (!()(>.  and  is  payalde  sixty  <lays  after  date,  in 
tiie  declaration  it  is  avt'ired  that  demand  of  payment  of  tlu!  maker 
wav  uKide  on  the  fourteentli  day  of  March,  which  was  on  the  fourth 
fliiy  after  the  expiration  of  the  sixty  <lays  which  tlie  note  had  to  run. 

Several  questions  aiisinu  out  of  the  record  lisivi'  hei'u  presente(l  for 
the  coiisideration  of  tiie  court.  'I'lie  principal  one.  Iiowever,  is  that 
whicii  relates  to  tlie  time  of  demand  of  payment  of  the  maker  of  the 
note,  and  jirows  out  of  a  hill  of  exce|)tioiis  taken  upon  the  trial.  'riii> 
has  tieon  pressed  upon  the  court  as  ii  (]Uestion  of  i>reat  importance,  and 
the  decision  of  which,  in  its  application  to  the  concerns  of  the  liank.  will 
hiive  a  very  wide  and  extensive  effect. 

We  shall  proceed  to  the  consideration  of  this  point  in  the  first  place, 
leaving  the  others,  which  ar  of  minor  importance,  to  he  noticed  here- 
after. 

The  testimony  tiiven  at  the  trial  was  for  the  purpose  of  showing  that 
the  Hank  of  Columliia  liad  from  its  first  estaiilishment,  in  17!);{,  adopted 
lla  practice  of  demandini>-  the  payment  of  notes  discounted  by  it,  on  the 
fdiiitli  d.ay  after  the  time  limited  for  the  payment  fli»>reof,  aeoording  to 
tile  exjtress  terms  of  the  note,  and  that  such  was  the  universal  custom  of 
all  the  banks  in  Washington  and  deorgetown  :  that  this  custom  was  well 
known  and  understood  by  the  defendant  when  he  indorsed  the  note  in 
question.  After  this  testimony  had  been  reccive<l,  without  objection, 
the  counsel  for  the  defendant  iielow  called  upon  the  court  to  instruct 
tlie  jury  that,  upon  the  evidence  so  given  l)y  the  plaintiffs  of  a  demand 
upon  the  maker  of  the  note  on  tin-  fourth  day  after  the  time  limited  liy 
the  note  for  the  payment,  the  defendant  was  not  liable  on  his  indorse- 
ment :  whicli  instruction  the  court  refused  to  give,  and  a  i)ill  of 
'  xccptions  was  thereupon  taken. 

'riiis  court  niu  M,  therefore,  assume  as  established  fads  (and,  lof)king 
.'1  the  eviilence  before  the  jury,  no  doubt  could  lie  entertained  on  the 
'•I'ltjeet)  that  the  <-ustom  of  the  IJaiik  of  Columbia,  and  all  the  other 
haiil<>  in  Washington  and  (Jeorgetown,  from  their  tirst  institution,  had 
hei  II  to  demand  payment  of   notes  due  them,  on  the  fourth  day  nflci 


1 

;  1  ■ 


•   .  ■ 

"itl 

i 

iM^ 

« J 

■  ?'^ 

<;". 

l^N 

ir„ 

i  fWBm 

i 

■  nt 


\,, 

-m 

■  1  * 

Brqfj 

>i  '■  ;. 

1 

♦s 


118 


IS    OIFFKHKNT    KKI.A  IION.S    AM>    Ot'CUI'ATIONS. 


RciiiiiT  I'.  liaiik  of  ColmiiMa. 


tlio    time    limited    tlirr.'iii.    lunl 


tii:i- 


ilNtolU    \v;vs    kiiuwii    ;ili(l 


iiiidcistood  l»v   (In-  ilft'tinhiiit.  K't'ii  icr.   wlu-n    iio  iinlniM-d    tin;    nub- 


(|iicsti()ii  ;    :iii( 


\.  it. 


iiiiiv  'h'  iiddt'd.  wilii  full  IvIImwUmIijji'  :uiil  t'X|K'L't:itii)ii 
lliiit  tliis  note  \v:is  to  l»(>  dc:dt  witli  in  tlic  snmc  way,  for  it  was  a  renewal 
of  a  dis(tount,  cuntimied  for  a  <M)nsider!ilile  time  hefme.  on  ntluT  notes 
similarly  drawn  and  indorsed,  some  of  whicli  had  lieeii  lUnianded  in  like 
nniimcr  and  |>rotes1eil.  and  afterwanls  |taid  and  taken  np  l>y  liimsi>tf. 
liKJer  such  circnmsi  mees.  it  would  st-em  that  ui.thinii'  short  of  some 
positive  and  inilteniiinn'  principle  of  law  could  shield  the  def\'iidanl  from 
respoiisihility.  But.  so  far  from  tronchinii"  upi>n  any  such  principle,  we 
think  his  lial»ility  completoly  estahlislied  liy  well-settled  rules  of  law. 

It  setsms  to  l»e  assumed  as  the  settleil  law  of  promi>^ory  note's,  that  in 
order  to  charge  an  imlorsiM'.  demand  of  the  maker  nui--t  lie  made  on  the 
third  d:iv  after  tliat  iiiniled  in  the  note,  and  tliat   tlii 


>  I- 


-tul)! 


»orn  a 


rule  that  parties  are  not  permiltetl  to  violate  it  even  Ity   'heir  mutual 


agreement. 

Wc  admit  in  the  most  uiupialilied  manner  that  the  usa<>f  of  m:dviii;i 
the  demand  on  the  third  day  (;f  liiace  has  liecome  so  oeneral  that 
courts  of  Justice  will  notice  it  <'x  (ijjlrio,  and  in  the  alisence  of  an\ 
j>roof  to  the  (contrary,  will  pi-esume  that  such  was  the  iiinlcrsttiniliiii'  of 
all  parlies  to  a  note  when  they  put  their  iiami's  u|)on  it.  lint  that  thi-. 
rule  has  any  attributes  so  inviolahic  as  not  to  l)e  touched  iiy  the  parties 
to  ueii,'otial>lc  paper,  cannot  he  admitted.  It  h:is  its  origin  in  custom. 
and  that  (aistom  too  comparatively  of  recent  <late.  and  is  not  one  of 
those  to  the  contrary  of  which  the  memory  of  man  runneth  not,  ami 
wliich  contriltuted  to  maki'  up  the  common-law  code,  which  is  so  justly 
venerated.  So  far  from  this,  that  the  allowance  of  anv  davs  of  gnice 
is  in  derogation  of  the  conunon-law  rule  ap[)lical»le  to  other  eoutract^. 
They  are  empiuitically  the  niere  creatures  of  usage,  viryin;^  in  dil'fercnt 
countries  to  suit  tlu'  \  lews  and  convenience  of  men  in  l)usines-<.  originallv 
oratuitous,  and  not  hiiidinu  on  the  holder.  The  conunon  law  would  re- 
(piire  payment  on  tlu^  last  day  limiti'tl  l»y  the  contract,  and  would  mNo 
give  to  the  maker  the  whole  of  that  day.  It  is  .m  settled  jirinciple  of  ili.' 
common  law.  apijlicMnle  to  all  contracts.  th;it  a  party  has  until  the  la-l 
«lav  limited  by  his  agr«'enieut  to  perforn»  his  t'ugag/ment.  and  even  iiiitil 
the  last  hour  of  the  da\ .      The  common  law  knows  of  no  fr.actions  of  a 


day 


custom,    liowcM'r,  —  and    that    introducer],    too,    principally 


banks,  —  lias  limited  tlu'  dav  to  a  few  hours  of  Vaisine 


Hut  tl 


us,  alio 


whatever  other  rules  have  l»een  adopted  by  consent  and  merely  for  t'lu' 
<'(Uivi'nience  of  comujeicial  men,  are  departures  from  the  common-law 
doctrine.     When,  therefore,  the  allowance  of  only  three  days  of  grace  is 


BANKS    AND    BANKINU. 


IIH 


Ilhistriitive  Caso. 


.said  to  1)1'  tlu!  l:iw  of  the  eoii'nict  l»y  l»ills  of  t'x<luiii<ft'  iiiid  |)r<tmi.4soiy 
iictti's.  iiotliiiiii  more  <;iii  \h'  iiitcn<ItMl  than  that  ciistoin  has  so  h)n<;  suiic- 
tiiUH'il  this  rule  tliat  all  (IcaU'rs  in  paper  of  tliis  ih">(  ription  arc  iukUm- 
>toi)(l  to  jj^ovcrn  tiicMisi'lvi's  hy  it.  Thf  hiw  of  tlic  (•ontra<-t,  proi)t'rly 
spcai\iii;j;,  is  to  pay  when  (hit;;  and  that  tinii-  is  to  Ix-  'isciMtainiMl  citiu-r 
from  the  contract /^f?"  .s•f^  or  that  taUcn  in  cDnni'ctioii  with  sonu' i\no\vu 
ctistiiin,  which  th«!  i)artics  arc  pri'suniccl  to  have  tacitly  consented  shoul.l 
Im-  made  a  i)art  of  tiie  contrai't.  And  it  is  in  tliis  view  only  that  three 
da"  ■.  of  Lrrace  are  allowed  where  that  cnstoin  is  recooni/.cd  as  the  rule; 
f.)!-  a  note  which  upon  its  face  has  sixty  days  to  run  is  in  truth  and  in 
fact  a  contract  for  sixty-three  days,  and  interest  is  tidxcn  for  that  time. 
And  how  is  it  ascertained  that  it  is  a  note  for  sixty-three  days  hut  l>y 
lookinir  out  of  the  contract  and  lindinu"  what  wa.-.  the  nnder^tandin<;  of 
U'lu're  the  custom  has  existeil    for  a    Inn^   time,  and   has 


tlic   p;irlii's' 

he  Muie  ifeneral,  courts  of  justice,  as  lud'ore  oi>served,  will  notice  it  f'X 
ojjh-:,,;  and  wiiere  it  has  not.  it  is  matti-r  of  |>ioof.  ff  this  is  not  the 
liniit    ill  whicli   these   transactions  are  to  he   coii,i(U'reil.  all   l»ank 


are 


ch 


iru'ealtle  with  iisiirx' ;   for  all  take  interest    lievoiid   what    is  allowed  1 


tv 


law.  if  time  is  to  Ik'  deterinined  hy  the  note  itself.  The  >,reiieral  rule  of 
law  is  that  demand  of  |)ay'nent  must  l»e  made  of  the  maker  when  the 
note  falls  due,  and  that  time,  as  now  settled,  is  on  the  last  day  of 
;.nace  ;  and  even  tliis  rule  is.  of  recent  date,  for  in  tin-  Kind's  IJench  in 
Knichmd,  as  late  as  the  year  1791,  a'lout  coeval  with  the  institution  of 
this  t»aQk  and  the  eiistoni  esttihlished  by  it,  we  tind  Lord  ICkwon  '  and 
Mr.  Justice  IJii.i.ku  dilferiiiii;  on  tiiis  very  point,  the  former  holdiiej, 
that,  by  analoi>;y  to  other  contracts,  tlu;  accei»tor  of  a  l>ill  of  exchan<i,e 
had  the  wh(.)le  of  the  third  day  of  L>race  to  pay  tlu'  bill,  and  that  a 
di'inand  on  the  fourth  day  was  not  too  lati'.  Mr.  Justici-  111  i.i.iai 
thought  the  demand  ought  to  be  made  on  the  third  day  of  grate;  that 
the  nature  of  the  acci'ittor's  undertaking  was  ti»  pay  the  bill  on  demand 
<iii  any  part  of  the  third  day  of  grace;  and  ln'  iiifi-rred  this  from  its 
having  been,  as  he  said,  the  practice  to  make  the  demand  on  that  day. 
If  it  was  a  doul)tful  (piestioii  in  Kiigland  so  late  as  the  year  171)1 
whether  the  demand  oiighl  to  lie  ni;ide  on  the  third  day  of  grace  or  tlu^ 
day  after,  this  bank  is  not  ehargi'alile  with  any  culjjable  innovation  iiptjii 


lol 


i<r-estai)lished   iiiles    of    law   (U*   usage    by  adopting    the    jjractice    of 


making  the  demand  ou  tlu'  fourth  dav 


It 


is  said,  however,  that  the  effect  of  this  testimoiiv  is  to  alter  and 


vary  by  parol  evidence  the  written  contract  of  the  parties.      If  this  is 
the  light  iu  which  it  is  to  be  considered,  thi're  can  be  uo  doubt  that  it 

'  LotUey  c.  .Mill.-,  4  Teiiu  Itop.  17U. 


'ill 


1    ■    ■?^  I 
it    o 


1    s 


i 


M 


ti 


m 


if 


w 


i\ 


120 


IN   difff:kknt  kklations  and  orniPATioNS. 


Ht'iiiicr  '•.  Hank  ol  Cnlmnhiii. 


(MVj^lit  to  ])»•  hiid  (iitiroly  out  of  view;  for  tlioro  is  no  ruin  of  law  better 
st'llicd.  or  more  snlutary  in  its  iippliration  to  contracts,  than  that  which 
l»r('cUnU's  tlic  admission  of  parol  evidence  to  conlradict  or  sdhstantiailv 
vary  the  h'lral  import  of  a  writttm  aijreement.  Kvidoncc  of  usafro  or 
custom  is.  however,  never  considered  of  this  eharacter,  but  is  received 
for  the  purpose  of  ascertainin<?  the  sense  and  nnd(;rstanding  of  par- 
ties by  tiieir  contracts,  which  arc  made  with  reference  to  sucli  usajxe 
or<'nstora;  for  the  custom  then  becomes  a  i)art  of  the  contract,  and 
may  not  improperly  be  considered  the  law  of  the  contract,  and  it 
rests  upon  the  same  principle  as  tiie  doctrine  of  flie  lex  loci.  All  con- 
tracts are  to  be  pjoverned  by  the  law  of  the  phute  where  they  are  to  be 
performed;  an<l  this  law  may  be,  and  usually  is,  proved  as  matter  of 
fact.  Tiie  rule  is  adfjpted  for  the  purpose  of  carryini?  into  effect  the 
intention  and  innlerstandincf  of  the  parties.  That  the  note  in  ques- 
tion was  to  be  paid  at  the  Hank  of  Columbia,  and  to  be  governed  by 
the  regulations  and  custom  of  the  institution,  and  so  understood  l)y  all 
partit's.  eaiuiot  ailmit  of  a  doubt. 

It  w(»uld  he  a  waste  of  time  to  go  very  much  at  large  into  an  exami- 
nation (tf  the  various  usages  and  customs  that  are  admitted  in  evidence 
and  recognized  in  courts  of  justice,  both  in  England  ayd  in  this  coun- 
try, in  almost  every  branch  of  business,  and  especially  in  commercial 
transactions,  for  the  purpose  of  ascertaining  the  meaning  and  inter- 
pretation of  contracts.  A  few  only  will  be  noticed  that  are  somewhat 
analogous  to  the  present  case. 

In  the  case  of  Cutter  v.  PowellJ  where  was  brought  under  considera- 
tion the  legal  effect  of  a  promissory  n  )le  given  to  the  mate  of  a  ship  for 
a  certain  sum  of  money,  provided  he  proceeded  en  her  voyage  and  con- 
tinued to  do  duty  to  the  port  of  destination.  I'he  legal  construction  to 
be  given  to  this  note  was  clear,  and  so  considered  by  the  court,  that 
nothing  was  due  unless  the  mate  continued  to  do  duty  to  the  port  of 
destination.  He  having  died,  however,  on  the  voyage,  the  conn 
directed  an  inquiry  into  the  usage  of  merchants  in  such  cases,  declnriiii: 
that  if  it  sanctioned  an  allowance  for  tlu'  timi'  the  service  was  performed. 
the  plaintiff  should  recover  according  to  such  usage. 

No  intimation  is  here  given  lliat  such  proof  wouhl  be  repugnant  to  the 
contract,  although  it  was  against  the  legal  import  of  the  note  if  con- 
strued without  reference  to  the  usage ;  and  althougii  the  usage  related 
to  trade,  it  was  very  limited  in  its  application. 

So.  in  N'ohh  v.  Ki'inioim}/.^  usage  of  trade  was  admitted  in  evidence 
to  explain  the  understanding  of  parties  in  a  polic^v  of  insurance,  although 


1  0  I'ciMi  Itep.  MO. 


Doug.  510. 


HANKS    AN!)    BANKIN(J. 


121 


»  ,     1 
i     ;! 


1 


I 


Illustnuive  ruses. 


lat 

'V!l- 

for 
Mill- 
to 

..f 

(Ult 

•ill;! 
km). 

tlif 

•I'li- 

Mice 
ugh 


tlio  iis;ii:c  li:i<l  not  i'xi>ti'(l  llircc  years.  I-roi'd  Manskii;i,i>  siuil  the  usunv 
coiiM  oiilv  ln'  known  by  proof,  sind  must  Vtc  tric'l  hy  a  jury  ;  lliiit  untliM- 
\viit(i<  iiiii^t  he  i)re.siiino(l  to  be  acfinaintt'd  with  the  practice  of  the 
tnido  they  insure,  whetiier  recently  established  or  not.  If  it  were 
nocoHsarv.  cases  might  be  multiplied  almost  without  end  showing  the 
same  principle  an<l  same  recognition  of  local  and  parti«'ular  usages  in 
ahnost  eveiT  brunch  of  business. 

We  have  also,  in  the  State  courts  in  our  eoiinti-y,  tlie  decisions  of 
vcrv  ciiliLrhtened  Judges  ailopting  the  same  princii.lcs  and  governing 
tlicm-clves  by  the  same  rules,  and  in  many  cases  not  unlike  the  one 

IjcfnlC    US. 

In  JniH's  V.  Falr'ft.^  the  same  doctrine  as  to  usages  of  banks  was  fully 
s:inctioiie(l ;  and  although  that  particular  usage  might  have  been  found 
in  jiractice  inconvenient,  and  not  to  meet  pultlic  approbation,  yet  tlie 
principle  whicli  govci'ued  tlie  decision  of  the  court  is  not  thereliy 
weakened,  namely:  that  the  usage  with  which  the  defendant  was  convci- 
sant  wa<  proper  evidence  to  be  submitted  to  a  .jury,  to  infer  from  it 
the  a-i^rei'ment  of  the  party.  And  although,  as  suggested  at  the  bar, 
this  custom  was  altered  by  the  banks,  we  do  not  find  the  courts  of  Jus- 
tice in  tiiat  State  attemi)tiu<i  to  control  it  in  its  application  to  notes 
made  in  reference  to  the  usage. 

The  doctrine  of  this  case  was  again  fully  recognized  in  Lincoln  and 
h"irii'bp,-k  Bank  v.  Pdiji',-  where  it  was  held  that,  bank  usages  estab- 
iislud  respecting  demands  on  makers  of  promissory  notes  and  notici's 
to  indorsers  being  known  to  dealers  in  the  banks,  they  were  bound  l»y 
tlii'in.  and  liiat  the  usage  was  proper  evidence  to  be  submitted  to  a  jury. 
These  eases  are  not  referred  to  for  the  |)urposo  of  apjiroving  the  par- 
ticnl.ar  usage,  but  to  show  that  evidence  of  such  usage  was  never  cons'*!- 
ered  as  contradicting  the  wiitten  contract. 

ILilsi'i/  V.  lirown^  is  a  very  strong  case  on  this  subject.  The  question 
was  as  to  the  liability  of  ship-owiu'rs  for  the  loss  of  money  taken  on 
frci'iht  by  the  captiiin.  The  defence  set  up  was  that  the  mastei-. 
according  to  established  custom,  was  permitted  to  take  money  on 
freight  as  a  peniuisite  to  himself,  and  the  owners  discharged  from 
responsibility;  and  the  question  directly  i)resented  to  the  court  was 
whether  a  particular  custom  or  usage  could  be  given  in  evidence  to 
control  the  general  law.  And  the  court  says  it  is  a  principle  that  the 
irencr;d  common-law  may  be,  and  in  many  instances  is,  controlled  l>y 
special  custom.  So.  the  general  commen-ial  hiw  may  by  the  same 
reason   be  controlled   by  a  spe(;ial    local  usagi-.   so   far  as  that  usage 


>  4  Miitjs.  -253. 


!  0  Mas '.  ir)5. 


»  3  Day,  346. 


1        ; 
1    1    i 

M''  H 

1    !    ' 

Hiii  i 

;(?i 

( 

■     l*^! 

1       j 

^  -i 

III 

iil 


Hlllf 


,1  ■ 


i 

.>;*■ 


B 


I  M 


If 


m 


mm 

Will 


m 


TT 


n 


1 


,; 

' 

I 

■in  I  <! 


122 


IN    DIFFERENT    KKLATIONS    AND    OCCUPATIONS. 


ReiiiKT  I'.  Blink  of  Coluiiibia. 


cxtiMids,  wliicli  will  (»|)i'i:it»'  iipuii  all  ooiitnicts  of  this  iK\tiiic  iikhIc  in 
vii'w  of,  or  Willi  rcrcrcnct'  to  such  iis;ioi.. 

En  Smith  v.  WriijJit.^  tiiis  iri'iicrul  principle  i.s  laid  down:  Tlic  true 
tt'sl  of  a  coiuiiiercial  iisanc  is  its  having  cxi^tcil  lonu;  enough  ii  li.iv,- 
i)cc()iiio  generally  known,  ami  to  warx-ant  a  prcsnniption  that  conn  ads 
arc  made  in  reference  to  it. 

l!i  the  case  of  Bank  of  Utica  v.  Smith.'-  a  note  payaltle  at  tin> 
Mechanics'  Bank  in  New  York  was  presented  and  payment  demanilcil 
fifteen  minutes  aftt^'  bank  iioins  ;  and  this  was  held  sullicient,  it  appc;ir- 
ing  thai  altbongli  it  was  a  (juarter  of  an  hour  after  the  usual  tiihe  nf 
closing  the  bank  as  to  other  business,  it  was  within  bank  liouis.  it 
appearing  that,  according  to  the  general  course  of  doing  l)usini'ss  at  'ii;> 
l)ank,  these  fifteen  minutes  were  the  usual  and  accustomed  time  Im 
tiiese  presentments,  and  of  this  course  of  business  the  defendant  oii^ht 
to  have  informed  himself. 

It  is  unnecessary  to  pursue  this  subject  further  by  particular  rctii- 
ence  to  decisions  in  the  State  courts.  The  same  doctrine  as  to  tin' 
effect  of  particular  usages  in  controlling  the  general  law  will  lie  foiiini  in 
accompany  the  administration  of  Justice  wherever  the  subject  i-^  Inonilil 
under  consideration.  Whether  these  usages  are  in  all  instances  wise 
and  l)encficial  may  perhaps  be  qnestioMnl)le.  l)ut  where  they  do  cxi-i 
tlu'V  are  considere(l  as  regulating  and  controlling  contracts  made  uiilri 
and  in  reference  thereto. 

The  same  princi|»le  is  recognized  by  this  court  in  the  case  of  Yi'iitmi 
V.  Hank  of  Alexandria. -^  The  chief  Justice,  in  speaking  of  the  effect  "f 
us.Mge  upon  the  legal  oliligation  of  parties,  oliserves.  if  the  case  showiil 
that  such  was  the  usage  of  the  bank  and  such  the  understanding  uinlei' 
which  notes  were  discounted,  this  couit  is  not  prepared  to  say  that  the 
undertaking  created  l>v  the  indorsement  would  not  be  so  fashioned  as  to 
give  effect  to  the  real  int*>ntion  of  the  parties. 

These  cases  -aw  sullicient  to  show  in  the  most  satisfactory  manniT  tin- 
light  in  whicli  courts  of  justice  consider  contracts  made  in  reference  to 
any  particular  usage,  and  the  effi'ct  that  such  usage  is  to  have  up  .11 
litem.  And  no  good  retison  is  perceived  why  these  principles  slioiiM 
not  lie  applied  to  the  case  before  us.  The  custom  under  wiiicli  t!'i> 
bank  has  transacted  business  for  live  and  twenty  years,  of  (lemainiin,' 
payment  of  the  drawei-s  of  notes  on  the  fourth  instead  of  tli.'  thiril  'lay 
after  tlie  time  limited  for  payment,  is  not  unreasonable  or  lepuguanl  to 
any  principles  of  general  policy.  It  does  not  stand  silone,  but  is  in 
accordance   with  the   usage  of   everv  other  l)ank    in   Washington   au'l 


1  Ciiino!',  i'i. 


2  18.  J  oh  lis.  -.m. 


•'  5Ciuiicli,  111. 


It.  !' 


CAKKIlili    AND    CLfi'IOMKR. 


i2;t 


Illiis^iiitivi'  Cases. 


( M  iiLT'tiiwii.  Till'  (U'fi'ii<l:mt  iiidoisoil  the  noti'  in  question  with  full 
kii.i\\li'ili><'  of  tin-  ciistoin.  A  (IciMnnd  on  the  fourth  (l:iy  is  iu  perfect 
liiiiiii  iiiv  witli  tlu"  iniii(;'.i»U's  of  tlu!  c  )iuui(>n  l:i\v.  if  upplii-.l  to  the  eou- 
tr.ut.  till'  Miaker  ii.i\iui^  the  wlioh'  of  tlii;  third  <l:iy  to  pay  iiis  note,  and 
Mill  lit'iu'i  ill  default  until  the  fourth.  The  inci>n\tMiiences  sujjjifested  on 
tlif  iM-:^-  iMiiMit,  u^r  (wiiii^  out  of  a  u^aj^e  here  differing  from  that  which  is 
ill  |HM'tice  in  otlier  places  on  this  siiltject,  are  not  of  j^reat  puhlic  con- 
Miii.  If  tiicy  exist,  tl  .-y  affect  the  hank.s  and  their  <Mistoniers  onl3\ 
And  if  felt  to  tile  [irejudice  of  cither  tlu'  one  or  the  other,  we  may  re.st 
:i'>mt'd  it  would  he  altered.  Their  private  interest  is  a  sure  guaranty 
tor  lliis. 

lint,  admitting  the  practice  to  be  inconvenient,  and  that  a  uniformity 
ill  tlii-«  respect  with  otlier  p:irts  of  the  country  would  he  desii;iiile,  the 
ii'iiii'dv  is  not  in  the  hands  of  courts  of  justice,  whose  Itiisincss  it  is  to 
jiidiie  of  contracts  :is  m:ide  hy  j)arties  themselves,  and  not  to  prescribe 
tile  iiiamu'r  in  which  they  shall  he  made. 

We  MIC,  accordingly,  of  opinion  that  the  court  below  did  not  err  in 
n-fiisiiig  to  instruct  the  jury  that   the  demand  upon  the  maker  of  the 
iintc  on  tlu'  fourth  day  after  the  time  limited  for  payment  thereof  (lis-    ^^ 
charged  the  defendant  from  lialiility  on  his  indorsement. 

JddynieiU  aj/iniii'if. 


1 


F! 


hWl 


I 


t 


^d 


f  1 


,m 


'  ^1 

4  fa 


I  li 


II.  COMMON  ("ARRIEHS— ISACKS   HKOARDINC  TllKIR  CKNKRAL   MA- 
151L1TV,  AND   TllK    MKANINlJ   OK   TKU.MS    IN   HILLS   OF   LADINli. 

GoiiDON    '.'.  IjITTLK.* 

In  the  S'ljircme  Court  of  Pi'inis;ilrinii(i,  ■'^I'pti'iiiljpr,  JS'J'J. 


Hon.  Wii.i.iAM  Tii.oiiMA.N,  Chii'f  Jiitttice. 
"      .Foils    B.  (iiiisuN, 
"      Til 


>U.\     B.  (illlSuN,      )     ^ 
IIOM.VS     1)1  MAN,    ) 


1.  I'iii'  iMiiiiiiDii  law  lliibilily  of  coiiiinon  carriiM-s  hy  wiiier  may  liu  alteied  by  usage. 

-    '' 1-^1  ruction  of  the  \vor(l>,  •'  iii('vital)k'  ilauxurs  of  tlui  rivtn-,"   in  a  hill  of  lailiii;?  of 

it.kmU  canicdDii  an  iiilaml  river,  may  hu  arriveil  at  by  evi.leiu-H  of  ciistoin  iiml  ii.sage. 

liiti.'oii  Lo  the  Comnion  I'leas.  in  an  action  hroiight  by   Little  ;ig!unst 
•■"i'l  ■!!  :iiid  Walker. 

llie   plaintiff   shipped  certtiin  goods  on    a    keel-l)oat  owned  hy  the 

•  Reported  S  Serg  &  I!.  .Illl;  II  .\in.  Der.  6,32. 


u' 


'  ■"  I'M 


1  ■     .< 

.   hi 


".■.lit 

I 


^1 


*, 


I 


u- 


124 


1\     1>'1FKI{KNI     KKIAIIO.NS    AM>    0(  i  LTATlON.s. 


(•iirdDii  ?<.  I^ittlc 


dffi'n<l:iiits.  truiii  I'itlslnirjj:  to  Ilopkliisville,  Koiitiickv.  !it  ;i  itrlniii 
frci<f|it.  The  ilt't'i'ii(laiit«-"  :iLr«'iil>  sii;iMMl  ;i  hill  of  liidinj^.  |ir<)iiii>iii^  -ki 
deliver  tlu' i^ixxjs  in  lT'""!  order  :iii(I  cninlitioii.  :ind  witlioiit  deljiy.  tli 
iiie\it:d)le  diiiiLrers  of  llu'  river  only  eNce|ited."  etc.  TIk'  d;iv  niter  ili 
goods  were  taken  on  l)oard,  tlu;  Ijoat  striirk  aijainst  a  sunken  lo;^-  uhiii 
lyinjjj  at  the  laiidin<;  iit  I'ittsl»ur<:f.  and  sank,  daniajrinj^  the  plaiiitiit  - 
jfoods.  and  this  aetion  was  l)ron;j;ht  to  recovei'  f(»r  said  daniajre.  11. » 
dei'laration  rontained  two  connts:  one  on  the  special  eontruct,  and  tip 
other  eharjfini^  the  defendants  as  common  cariiers. 

The  defendants  offered  evidence  of  a  ireneial  iisa<>('  or  enstom  in  rel;  - 
tion  to  the  liahility  of  boatmen,  amonntin^j,'  to  an  im|tlie(l  contract.  In  i 
the  conrt  rejected  it.  exce|)t  so  fai' as  siidi  iisauc  served  to  explain  ll  c 
common  and  eonnnercial  meaninifof  the  words,  "  tlu'  inevitalilc  daii^  is 
of  the  river,"  in  the  liill  of  ladinj;.  Kxccptions  were  dnly  tendered  ami 
allowed  to  the  rulinp;s  of  the  court  in  rejcting  the  evidence  ali". f 
mentioned,  offered  by  the  defendants. 

The  prt  sident  of  the  court  delivered  an  elabonite  char<je,  slatini:  the 
principles  of  law  involved  in  the  case  and  roniincMrni<jf  ui)on  the  fa'  i>. 
but  at  the  same  time  informing  the  jury  that  it  was  their  proviiK  (  o 
judge  of  the  facts.  T^ie  whole  charge  was  excepted  to;  but  as  ti:t 
court  did  not  jiass  upon  the  pciints  contained  in  it,  it  is  not  dcciiic  1 
necessary  to  insert  it.     Verdict  and  jn<lgment  for  the  })laintiff. 

Balilwin  and  lios.'i,  for  the  plaint  ill's  in  «'rror,  citctl  as  to  the  evidciKv 
of  a  usage,  dtrson  v.  Blazer  '  and  Stnltz  v.  Dirkei/.- 

Bl  hVc.  S/uih'i'.  and  Forward,  for  the  defendant  in  error,  citeil  as  |c) 
the  evidence  of  usage,  Stoerer  v.  Whilmau,'^ 

Tii.fiiiMAX,  C.  J.  —  Several  exceptions  were  taken  to  the  coiiit- 
opinion  on  points  of  evidence  during  the  trial  of  this  cause,  and  :iii 
exception  was  also  taken  to  the  charge  delivered  to  the  jiuy. 

The  third  exception  was  to  the  rejt'ction  of  evidence  offered  liy  tlu 
defendants  of  the  custom  or  ns:ig(>  which  had  prevaiUvl  at  I'lttsliiii:. 
and  in  the  Western  country  in  g»'ncial.  touching  the  liability  of  tlii'-« 
|)erson8  who  can'led  the  goods  of  others  for  hire  on  the  waters  of  tin 
Ohio  and  Mississippi.  The  object  of  the  defendants  was  to  i)r(iv'  n 
custom  by  which  the  carriers  were  liaitlc  for  losses  only  in  case  of  iivi:- 
ligence.  The  court  rejected  the  evidence  because  in  this  case  llu.v 
was  a  written  contract;  but  they  were  willing  to  admit,  and  did  admit. 
evidence  of  usage  or  custom  ascertaining  the  construction  of  the  words. 
"inevitable  dangers  of  the  river,"  which  had  been  introduced  iii(')  tl:- 
bill  of  lading. 


1  ■_'  liliiii.  r,:>:  4  Am.  Dec.  (0:1. 


'  5  Hinn.  JS.") ;  il  Am.  Dec.  411. 


:i  oniir.i.  Il'i. 


^    f 

(^\Ri;ii:it    AM)    CL.VrOMKK. 


125 


Illustrative  Cases. 


If  (lie  CMX'   li;iil   rested   s()l«-ly  on    the    written    eontiiict.  there   wouhl 
liiive  lieeii  niiich  to  s;iy  in  favor  of  the  <iecision  of  the  court,  because, 
lie  tlte  coininon  hiw  what   it  may,  tlie  |)arties  liave  a  riijht   to  alter  or 
iii'ilifv  it  l)y  spp(M:il  contract;   iiiu\  when  they  liave  done  so,  the  ([uea- 
ti.iii  is.  What  is  tlie  construction  of  the  contract?     In  mercantile  c;is<'s 
til'  iisajife  of  trade  is  often  eaUed  in  to  explain  words  of  <lou))tful  im[)ort, 
ulthough  it  would  not  be  .idniitted  to  (Mintradict  the  intent  of  the  con- 
fr.irt.  expressed  so  ch'arly  as  to  admit  of  no  doubt.      Wiiere  evidence  of 
ii-nije  is  adinifted.  the  witnesses  are  confined  to  tlie  fact  of  usaj^e,  and 
;iiv  not  aUowed  to  ix'wo  tiieir  opinion.     This   is  the  law  e>'  'SHsIkmI  by 
tlie  Ix'st  autli<)rity.     I  refer  to  the  foUowin^i^-  cases:  '    Wintfir'ijj  v.  Union 
lii^iii-iuu'i>  Comjvoiy,'^  lintut    v.  Gnrrhicr.''  and   Frith   v.  Buiki  r.'*     Tiiai. 
till-  court  was  ri<jht  in  aihuittinj;  evidence  of    usajje    <      asc(.iaiii  thu 
eiii;struetion  of   the    written   <'()ntract  in  tiii'  |)reseiit  case.  I   am  clear. 
"The  uiiavoid.'i'il'     lani^ers  of  tiie  river"  are  not  mor"  detini!'    expres- 
sions tliiui  "•  tile  perils  of  th-  sea,"  the  word.-<   usually  iiisiM-Uvi  in  l)ills 
(if  l;i(liiiu;  on  mnrilime  voyages.      And   in  such  bills  of  lading  evidt-iK  e 
(if  ii-;ane  has  lieen  received.      So  long  ajjo  as  the  twenty-fourth  ye:ir  of 
Cluiiles  I.  a  (piestiou  arose  in  the  (iase  of  l*ickprinij  v.  lim'kley,-'  whether 
;i  !  iking  by  pirates  was  a  peril  of  the  sea.      The  case  came  l)efoie  the 
ti'iirt  on  a  demurrer.      Merchants  and  experienced  tniirinera  were  exain- 
iiu'd.  from  whose  evi(hMice  the  court  was  satisflt-d  that   the  taking  was 
ijeiu'rally    umlerstood    to    be    within    the    words  of    the    contract,    and 
decided  accordingly.      liut,  on  the   hearing  of    the    trial    of    the   case 
hofoie  us.  it  |)robaiily  escajx'd  the  court  that  the  question  was  not  cou- 
fiiied  to  the  written  coiitiMct.  liecanse  there  was  a  count  in  the  declara- 
timi  ill  which  the  defendtints  were  chaiged  as  common  carriers.     If  the 
liiuiiiliff  had  failed  in  his  count  cm  the  special  contract,  he  might  have 
recovered  against  the  defendaiits  as  common  carriers.      It  was  incum- 
bent on  the  defendiiuts,  therefore,  to  satisfy  the  court  and  jury  that 
tlii'v  wore  not  liable  as  common  carriers ;  and  this  they  could  not  do 
Imt  by  showing  that  the  strict  common-law  rule  had  not  been  received 
ill  the  Western  country.     Strict,   inih'cd,   is  the  rule  of   the  common 
l;uv.  for  the  carrier  is  liable  for  every  accident  not  arising  from  the  act 
(if  f  Jod  or  a  pulilic  enemy.     It  was  not  always  so. 

Tiitil  England  liecame  a  commercial  country,  the  law  of  carriers  wa.s 
cfuiforiaable  to  the  general  priuci[)les  of  bailment:  that  is  to  say,  the 
carrier  was  liable  only  where  he  had  not  used  ordinary  care  and  s  igi- 


'I: ;! 


I 

I 

I 


;!( 


II' 


■i!  'k^ 

■It    '*r*r 


'  Mill,  on  Ship.,i)t  ll.cliap.  4,  §  -2;  2  Miusli. 

IK'c.  'jd;. 

•  •'.  Wash. cut.  7. 


<  1  Wiisli.  C.  0!    115 

*  -1  .fDhiis.  1127;  J  Marsh.  Dw.  jiW, 

'-  1  si\.  v.vi. 


mi 


!|  «»  ^ 


12B 


IN    DIFFERENT   RELATIONS    AND   OCCUPATIONS. 


Gordon  t>.  Little. 


■■:  i 


liiiiw.  It  WHS  SO  imdtirstood  in  the  reign  of  ITonry  VIII.'  But  when 
eoininerce  becurae  extended,  under  tlie  nourishing  reign  of  Kli/.iibeth,  it 
W!is  thought  expedient  to  adopt  u  stricter  rule,  in  order  to  guard  against 
frauds  and  coUusions  easily  practised  but  hard  to  prove.  In  England 
the  rule  has  been  rigicUy  observed,  for  the  sake  of  maintaining  what  the 
courts  have  considered  as  a  public  convenience,  though  not  without 
now  and  then  a  struggle,  in  cases  of  extreme  hardship  on  the  carrier, 
where  the  loss  has  been  by  fire  or  robbery.  The  law  as  held  by  modern 
judges  will  be  found  in  Fonrard  v.  Pittard.^  Hyde  v.  Trent  and  Merscj/ 
Navigation  Com]Xivy,''^  and  Elliot  v.  Rossell.'*  But  although  the  courts 
have  not  relaxed,  yet  the  rule  has  been  considered  by  the  public  as  more 
severe  in  some  instances  —  as,  against  carriers  by  water  —  than  was  con- 
sistent with  justice.  And  accordingly,  about  the  year  1795,  the  usual 
form  of  chaiter-j)arty  was  altered  in  Kngland,  and  now  stands  as  fol- 
lows: "The  act  of  God,  the  king'f.  enemies,  lire,  and  all  and  every 
other  dangers  and  accidents  of  the  seas,  rivers,  and  navigation,  of 
whatever  nature  and  kind  soever,  excepted." 

The  Parliament  has  also  interfered  in  favor  of  cari'iers  by  water,  for  hy 
statute  ^  they  are  relieved  from  liability  in  case  of  tire  on  board  any  ship 
or  vessel ;  neither  are  they  liable  for  "  gold,  silver,  diamonds,  watdics. 
or  precious  stones  lost  in  a  ship  or  vessel  by  robbery,  embezzlement, 
making  away  with,  or  secreting,  unless  inserted  in  the  bill  of  lading,  or 
notice  given  in  writing,  stating  the  articles  and  their  value."  An  attempt 
was  afterwards  made  to  carry  the  thing  farther,  and  to  reduce  the  lia- 
bility of  carriers  by  water  to  losses  which  hai)i)ened  through  the  fault 
or  negligence  of  the  master  or  mariners.  A  bill  to  this  effect  passed 
the  House  of  Commons,  but  was  rejected  by  the  Lords. "^  This  sketch 
of  the  English  law  will  be  important  when  we  come  to  consider  the  pro- 
priety of  admitting  evidence  by  the  custom  of  the  Western  countiy. 
With  regard  to  carriers  by  land,  the  law  has  been  here  as  in  Kiigliuid. 
Public  convenience  requires  it,  nor  have  I  heard  a  suggestion  of  any 
doubt  on  the  subject.  But  with  regard  to  carriers  by  water,  the  hiw 
has  not  been  considered  as  settled. 

Tliere  is  said,  indeed,  to  have  been  a  decision  at  Nisi  Prim  by  Chief 
Justice  jNIoKkan  and  Judge  Ykatks  that  carriers  on  the  river  Sus(iiii- 
hanna  were  liable  as  common  carriei's.  But  we  have  no  report  of  that 
case,  and  it  probably  was  decided  without  much  argument  or  con- 
sideration.    The  point  came  before  this  court  in  Dean  v.  Swoop.''    The 


'  ,Jonca  on  nail.  lOJ,  103. 

2  1  Term  Rep.  ■il. 

■'  r>  Term  Rep.  :!S'.i. 

■•  10  Johns. !);  0  \m.  Dei-.  ;!06. 


<*  26  George  111.,  c.  «!;  Abb.  on  Ship.,  pi 
3,  chap.  4,  §  8. 

•'  See  Abb.  ou  Ship.,  pt.  3,  chap.  4,  §  1. 
'  'i  Uiuu.  72. 


Cliicf 

|llS(llH'- 

T>f  that 

|r  eon- 

Tlu' 


CAKUlKi;    AND    CUSTOM KK. 


12: 


Ill«istr;iti\<-  Cases. 


I oiiit  iMMci'ived  its  import mu-c.  aii<l  (Iccliiicil  giving  an  opinion  of  it,  as 

it  was  iiiim-cossarv,  the  causr  adniittiiig  of  a  decision  on  anotlicr  point. 

i'lic  naviti'ation  of  the  Siisinu'hanna  and  the  Westerly  waters  is  (|nite  a 

;■  new    thing.      Its  origin   may   be   dated   posterior  to  oui'  independence. 

t  I'riiir  to  that  it  did  not  (k'serve   the   name  of    navigation,   nor  could 

^  tlu'ie  have  been  any  custom  about  it.      Many  parts  of  the  Knglish  eom- 

k  tiiiin   law  have  been   rejected    as  improper  for  the   eon' lit  ion   of    this 

Coiniii'iiiwcalth.     To  what  extent  that  common  law  h;i'-    lieen  reserved 

in  the  naviiiation  of  our  rivers  is.  in  my  opinion,  fairly  o[)en  to  investi- 

L'.'ition.     It  is  to  be  understood,  however,  that  it  lies  upc^n  him  who  sets 

ii|)  a  usage  departing  from  the  connnon  law  to  prove  it  to  the  entire 

s;i*isfactioM  of  the  court  and  jury.      It  was  remarked  by  this  court,  in 

ihc  case  (if  Carson  v.  BJ(tz<'i\^  that  otu-  rivers   were  so   different  from 

•'iiisc  of  England  that  the  same  laws  respecting  the   pioiK/ty  fisheries 

wiiiild  not  suit  the  two  countries,  nor  had  the  English  law  on  that  sub- 

ji'ct  i)een  n'ceiveil  in  Pennsylvania. 

I  will  not  say  that  the  English  law  of  carriers  by  watei-  is  inapplicable 

to  this  country:  but  whether  it  has  been  :ido[)ted  in  its  full  extent  is  a 

fact  wdtliy  of  investigation.     Unless  a  custom  or  usage  is  most  clearly 

I'staltlisiicd  to  the  contrary.  I  should  think  that  the  (;:in  lei  was  liable  for 

every  a(;cident  which  skill,  care,  and  diligence  could  have  prevented. 

What  may  be  called  the  act  of  God  has  sometimes  occasioned  differ- 

ciKi'  of  sentiment.     But  the  best  opinion  is  that  the  i\A  ol  (liod  is  some- 

tliiiig  in  which  the  act  of  man  has  no  part  —  such  as  ligliliiihg.  tempest. 

wind.  etc.     Iti  our  rivers,  which  ;u"e  interspersed  with  falls  and  rapids,  a 

siiddcn  flow,   not  amounting  to  storm  or  tempest,  might  have  such  an 

effect  as  to  defeat  all  human  skill  and  diligence,  and  should  be  considered 

as  tiic  act  of  (iod.     There  is  great  reason  why  the  cairier  should  be 

liable  for  all  kinds  of  embe/.zUvncnt.  stealing,  and  robbeiy,  except  by  the 

public  euemy :  for  in  those  cases  collusion  may  be  so  artfully  concealed 

tiiat  it  would  be  almost  impossible  to  detect  it.     But  we  need  not  takt' 

^ll(■il  large  ground  for  the  decision  of  the  (piestion  before  us.  which  is 

whether,  on  the  count  against  the  defendants  as  comm(m  carriers,  they 

ini;:ht  not  be  permitted  to  prove  a  usage  different  from  the  common 

law?     Ami  for  the  reasons  already  gi''en.  as  well  as  many  others  which 

laiLrht  be  given.  I  am  well  satisfied  that   the  evidence  was  admissible. 

On  tlie  written  contract  it  would  be  premature  to  make  any  rein  arks, 

hecuiise  the  court  admitted  evidence  of  usage  to  «'xphiin  its  eonstruc- 

tion.  and  there  is  no  ([uestion  on  that  point     i'l'ore  us. 

(iiusuN,  J. — As  to  the  admissibilit''  of  evidence  of  u  cust 


pel 


1  2  Binii.  47."i;  4  A.n.  Di'C  403. 


m 


I 


f       «« 


1 

^h   1 

i 

i      ; 

1 

.1! 

"JlV 

' 

■  ■tl 

!■ 

'■ 

r 

'^ 

1 

128 


IN    DIFKKRENT    RKLATIO.VS    AND    OrCll'ATri  >\s. 


Gordon  v.  Littl*'. 


li;tr  to  the  carryinj?  business  of  the  Ohio.     It  is  settled  tluit  :i  comiiiMn 
eiiirita-  is  answerable  for  every  (U'<;ree  of  ii«;j;li<;eiiee  between  the  detei- 
iiiinate  point  of  ordinary  dili<>en»t'  and  that  where  the  least  iniaginaMo 
sliade  of   neji;li<j;ent'e  beiiins.     He  is.    in  effect,   an  insurer  ag^ainst   ;ill 
perils  except   those    whieli  are  prnduceil   l)y    a    sudden  conimotioii  ir 
change  in  the  stiiti;  of  the  tdenients.  and  which  no  JMinian  skill  can  axuid 
or  human  force  overcome,  and  those  which  arise  from  the  hostile  ari;iy 
of  a  foreiufn  force.     The  difference  between  a  carrier  and  any  otlicr 
bailee  for  hire  is  in  all  cases  founded  on  maxims  of  public  pcjlicy  niid 
public  convenience,  as  much  as  it  is  in  the  particular  instance  of  liability 
for  a  loss  liy  robbery,  which  Sir  Wilmam  Jonks  considers  an  ex'optinn 
to  the  general  rule  of  responsibility,  rather  than  a  part  of  the  rule  itself. 
The  law  raises  a  conclusive  presumption  ajrainst  the  carrier  not  only  in 
the  case  of  robbery,  lest  a  confederacy  should  be  formed  between  him 
and  thieves,  without   a  possil>llity  of  detection,  Init  in  all  cases  except 
those  just  now  mentioned,  because  it  prevents  the  necessity  of  [)roi;f  of 
facts  impossible  to  l»e  made  in  one  case  in  a  thousand  by  the  owner  of 
the  goods.     The  caiiier  alone  can  give  any  account  of  the  loss  and  its 
attendant  circumstances.     In  some  cases  his  vservants  might  becalli'd; 
but,  necessarily  participating  in  whatever   negligence  there  may  liinc 
been,  and  being  answerable  to  their  employer,  to  exjiect  them  to  be 
impartial  witnesses  would  be  against  reason  and  all  experience.      The 
law,  therefore,  does  not  stop  to  compute  the  quantum  of  care  tiiat  liius 
been  bestowed ;  it  declares  the  carrier  liable  for  the  slightest  negligciicf, 
and  f.ssumes  what  is  true  in  fact:   that  no  loss  can  happen  without  some 
degree  of  it,  unless  in  the  excepted   cases  already  mentioned,  ainl  it 
imposes  on  him  the  burden  of  proving  that  the  loss  proceeded  from  ;i 
peril  within  one  of  the  exceptions.     He  must,  therefore,  either  sti[)iil:ite 
for  a  premium  adequate  to  the  risk,  or  restrain  his  responsibility  by  ;i 
special  acce])tance  of  the  goods;  if  he  has  done  neither,  the  acceptmice 
must  be  taken  to  have  been  in  reference  to  his  duties  at  the  coniiiiou 
law. 

I  have  thus  stated  the  common-law  responsibility  of  a  carrier,  together 
with  the  reason  for  it,  in  order  to  show  that  no  one  can  refuse  his 
assent  to  the  wisdom  and  salutary  tendency  of  its  policy  in  the  abstract. 
The  only  question  is  as  to  its  a[)i)lical)ility  to  the  carrying  business  of 
the  Ohio  in  particular.  For  I  take  it  to  be  indisputable  that  the 
common-law  measure  of  responsibility,  as  a  general  rule,  is  as  appliciilih' 
to  a  carrier  by  vH,ter  from  place  to  place  within  the  State,  or  from  :i 
place  withni  tlie  State  to  another  in  a  neighboring  State,  as  it  is  to  n 
carrier  from  a  place  beyontl  the  sea,  or  by  land ;  and  it  is  expressly  heW 


f 


CARRIKIi    AND    CUSTOMKK. 


129 


Illiistrativf  Cast's. 


so  l>y  tlie  most  respoctaldi;  cuurts  of  our  sister  States,  as  is  shown  hy 
Kliiot  V.  liossell,^  wliere  the  decisions  in  the  <lit'ferent  vStates  are  eitecl. 
And  ill  lidl  V.  Reed-  tlie  priiuipU;  seems  to  have  been  eoneeded  by  this 
eoint ;  and  in  Lea  v.  Stroud  it  was  expressly  so.  Tiiis,  althon<]fh  a  Nisi' 
I'n'ii.i  decision,  is  undoubtedly  of  \vei<>lit  to  show  tlie  view  that  was 
taken  of  t\m  law  as  respects  the  Susquehanna.  The  question,  then,  is 
as  ti)  the  appli(^ability  of  the  common-law  rule  with  resi)ect  to  the  Cue. 
Now.  what  is  there  to  distin<>uish  that  river  from  the  other  rivers  id'  the 
State?  Its  navit;ation  is  not  more  perilous  ;  and  if  it  were,  the  carriers 
iniiiht  exact  a  compensation  adeijuate  to  the  risk;  the  nature  (d'  the 
business,  the  facility  to  practise  fraud  without  detection,  and  the 
luipi/ssibility  of  showinj^  want  of  due  dilii^once  are  the  same.  But  the 
cumnioii  law  is  sup[)osed  to  be  altered  with  respect  to  the  river  by  a 
cust<;m.  Before  we  examine  that  matter,  let  us  ascertain  what  is  the 
law  with  rejiard  to  customs. 

'I'liese  are:  I.  General,  which  constitute  the  universal  law  of  the 
(■(jiMitry;  or,  in  other  words,  the  comiuon  law.  2.  Particular,  which 
operate  in  and  are  conrtned  to  particular  districts,  and  in  Kn<i;land.  3. 
rarticular  laws,  which  are  reco;i;nized  by  particular  courts  of  general 
Jiuisiliction :  or,  in  other  words,  the  civil  and  canon  law,  which  with 
us  are  so  blended  with  the  common  law  as  to  have  become  part  of  it.^ 
Nnw.  general  customs  are  never  proved  before  the  jury,  but  are  deter- 
mined by  the  judges.'*  In  ConsHqua  v.  Wdliii'/s.''  it  was  held  by  the 
Circuit  Court  of  the  United  States  for  the  District  of  Pennsylvania 
that  where  the  couunou  law  is  changed  by  a  general  custom,  it  must 
have  prevailed  so  notoriously  as  to  enable  the  judges  to  take  notice  of 
it  witiiout  pleading  or  evidence.  In  Carson  v.  Blazer,  the  court  from 
their  own  knowledge  estal)lished  the  deviation  frmn  the  conumiu  law, 
without  referring  tlu;  matter  to  a  jury.  It  would,  in  truth,  be  an  inver- 
sion of  their  respective  functions  for  the  court  to  receive  the  law  from 
the  jury.  It  will  not  be  proten<ie<l  that  the  finding  of  a  gen-n-al  custom 
wiinld  be  good;  and  if  so,  the  evidence  Wfld  clearly  inadmissible  to 
cstahlish  a  general  custom. 

Now,  what  is  the  custoiu  relieii  on  here?  Not  a  general  one,  pervad- 
ing the  State,  for  such  woidd  l)e  part  of  the  common  law,  and  determiu- 
alile  liy  the  judges.  It  was  attempted  to  be  estal)lished  as  a  particular 
custom,  and  as  every  particular  custom  must  necessarily  be,  i)y  evi- 
dence before  the  jury;  and  I  care  not  whether,  as  having  the  dignity 


'  lO.JolniH.  1 ;  IS  Am.  Dec.  Wm. 
»  4  Hiiiii.  Ill;  5  .\m.  Dec.  3'.<8, 
'  1  Uhi.  Coin  111.  (>!». 


*  Id.  67. 

6  1  Pet.  C.  Ct.  ■i'Si. 


r  !i 


41 


m 


■I 

m 


i4 


r  ^  ^  V 


I !  i  I 


1.30 


IN    DIFFERENT    RELATIONS    AND    OCCUPATIONS. 


Gordon  v.  Little. 


of  a  law  of  local  ohliijation  and  suiMTsodiiiy  the  (!Oinmon  law  within  the 
district   wiicre   it   is   supposed   to   pievail.    or   as    peiforniiiiii'  Ihe  inon- 
himihle  olHce  of  a  usatje  of  siu-h  notoriety  as  to  be  presumed   to  Iimvc 
entered  into  the  stipulations  of  the  parties,  and  tacitly  to  have  beconir  u 
l)art  of  their  agreement,  the  result  is  in  either  case  tiie  same.     With 
us.  particular  customs  have  no  force.     I  know  not  a  {Greater  or  a  nioro 
embarrassing  evil  than  a  law  of   merely  local  obli<;ation.     'I'hc  rule  of 
the  carrying  business  of  the  Ohio  ought  to  be  that  of  the  Juiiinta,  the 
Susquehanna,   the  Delaware,   and  their  tribut.'iry  streams.     Su|)pose  a 
different  usage  to  exist  in  respect  to  each,  is  there  to  be  diffei'eiit  law  in 
respect  to  each?     In  fact,  that  result  would  be  inevitable;  for  1  under- 
stand the  evidence  to  have  been  offered  to  a  custom  peculiar  to  tiic 
Ohio,  and  it  will  hardly  be  expected  that  a  usage  the  same  in  every  par- 
ticular should  prevail  with  respect  to  all  our  rivers.     It  is  impossible  to 
get  away  from  the  conclusion    that   by  giving  the  usage    any  furtlior 
effect  than  that  of  a  convenient  subject  of  reference  to  explain  a  latent 
ambiguity  in  the  expressions  of  the  parties,  where  their  meaning  woiilil 
be  otherwise  doubtful,  we  repeal  an  established  i)rinciple  of  the  conminn 
law  —  a  matter  which.  I  api)relu'Md.   is  not  open  to  us.     So  that,  view 
the  subject  as  we  may.  t'.iis  custom  or  usage,  if  it  have  any  openitinn 
besides  what  I  have  just  assigned  to  it,  must  have  it  as  a  rule  of  parn- 
mount  obligation  Avithin  a  particular  district,  and  not  as  the  general  law 
of  the  land.     But  in  Botrenv.  Jacksnn.  '  it  was  held  by  the  Cirniit  (  ouit 
of  the  United  States  that  evidence,  even  of  a  usage  of  trade,  is  iiiaiiini<- 
sible  when  tiie  law  on  the  subject  is  settled;  and  also  by  the  same  coiiit. 
in  Winthrop   v.   I'ln'on  Insurance  Company,-   that   opinions   as   to  the 
construction  of  a  contract  are  not  evidence;  and  \n  Henry  \ .  A'/.s/i' ■' it 
was  held  that  a  witness  cannot  be  admitted  to  contradict  tlie  estahli-^lied 
principles    of    the    law.     In    Stoecer   v.  Whitman'*  the  very   piineipK 
under  consideration  was  decided  by  this  court,  by  whom  it  was  lielil 
that    evidence  of  a  custom   in  a  particular  place,  different   from   the 
common  law.   to  reenter  for  a  forfeiture  incurred  by  non-|)aynieiit  of 
rent,  is  inadmissible,  the  chief  justice  who  delivered  the  opinion  of  the 
court  declaring  that   miseral)le  would  be  our  condition  if  i)roperty  were 
to  d('i)en<l,  not  on  tiie  contract  of  tlic  parties,  exjjounded  by  estal)ii>heil 
princi[)les  of  law.  hut  on  what  is  called  the  custom  of  partit'iilai  plaee-. 
so  that  we  migiit    iiave  different  law  in  every  town  and  village  of  the 
State.     The  same  mischief  would  ari'.e  from  having  different  law  with 
respect  to  tlu'  navigation  of  every  river  of  the  State.     But,  even  if  we 


t  a 


1  Whavt.  Dig.  253. 
-■  Ibid. 


»  1  Diill.  H)!>. 
*  6  Itinii.  41G. 


CAKRIER   AND   CUSTOMER. 


131 


Illustrative  Ciists. 


hail  tlic  j)o\vi'r,  what  iiiduoement  have  we  to  alter  the  eoiniiion  lawr 
Would  its  rule  of  respousibili.ty.  when  applied  to  the  earryinji  husiM(s>< 
of  tilt'  Oiiio.  produce  evils  which  are  not  felt  in  its  ajtplication  to  that  of 
the  other  rivers  of  the  State,  or  to  carryinjij  hy  land? 

We  are  to  recollect  that  our  decision  will  owe  its  inipoilancc.  not  to 
the  value  of  the  i»roiterty  immediately  involved  (although  that  is  con- 
siderable), but  to  the  rule  it  may  establish  for  the  future;  and  if  such 
rule  be  not  the  most  convenient,  the  parties  have  in  every  e:ise  power  to 
establish  a  i)articular  measure  of  responsibility  for  themselves.  It  is 
only  where  they  have  neglected  to  explain  themselves  fully  that  some 
prei'stablished  rule,  to  whic;li  they  are  supposed  to  have  ief(>rred, 
becomes  necessary.  Now,  it  is  supposed  that  a  usage  has  ex!s"<d  with- 
out even  any  knowledge  of  a  preexisting  rule,  which  consecpieniiy  indi- 
cates the  wholesome  and  convenient  measure.  To  me.  howevei',  it  seems 
that  no  measure  or  rule  —  if  it  can  be  so  called  —  which  is  altogether 
uiieertain  in  its  nature  can  be  either  wholesome  or  convenient.  If  we 
go  by  the  common  law,  we  shall  have  a  definite,  known  nil;-  wliich. 
applied  to  the  facts  by  the  court,  will  produce  as  much  certainty  of  result 
iis  legal  proceedings  are  susceptible  of :  if  we  go  by  the  usage,  the  whole 
matter  will  have  to  be  determined  by  the  jury,  on  evidence  of  the  com- 
mon pr.'K'tice  and  understanding  on  the  subject,  which  would  be  to  go 
by  no  rule  at  all.  So  that  the  right  to  compensation  will  in  every 
instance  depend  on  wiiat  the  jury  may  think  the  proper  degree  of  dili- 
gence. Wi'  should  be  ijerpetually  inciuiring  by  a  jury  as  to  what  is  the 
hiw  of  the  land:  and  the  degree  of  diligence  recpiired  by  the  carrier 
would  be  as  Hui-tuating  as  the  opinions  of  the  witnesses  called  to  I'stab- 
hsh  it. 

That  the  common  law  has  not  l»een  so  altered  as  to  contract  the 
responsibility  of  carriers  by  water  is  proved  by  Lea  v.  Strnu>)  and  licll 
v.  h'icd.  The  business  of  the  Delaware  and  Suscpiehanna  finuislies 
nothing  like  :i  custom;  f')r  on  these,  as  well  as  on  their  tributaiy 
streams,  carrying  for  hir«'  is  little  known.  The  produce  of  the  eoniitrv 
is  for  the  most  part  taken  to  market  in  flat-bottomed  boats  pureliase(| 
liv  the  owners  of  it,  and  navigate<l  by  hands  that  reci'ive  daily  wages. 
Tlie  bargemen  —  who  are.  strickly  spi'aking,  connnon  cai'riers  — -  wen-,  till 
lately,  mostly  employed  in  transporting  merchandise  up  these  rivers,  a 
sort  of  navigation  in  whi<.'li  there  is  so  little  of  peril  that  with  ordinary 
ilih^enee  a  loss  can  s(-ai'cely  ever  occur;  and  that  furnishes  a  satisfae- 
tmy  rea-^on  why  there  is  no  instance  of  an  action  having  been  t)ntught 
a;:aiiist  one  of  these  where  the  negligence  was  n<(t  gross  ami  palpable. 
'Hn.-<e  remarks  are  ni)plicable  only  to  that  part  of  the  Delaware  where 


iiiiii' 


V  i 

Hi. ' 


l\:4 


I 


^  if 


r 

-I 


if- 


'\'i 


^ 


it 


II  ■  ;■ 


132 


IN    DIFFKHKNT    RKL\TION8    AND    (JCCl  I'ATKJXS , 


Gordon  V.  Little. 


mn 


the  tiflo  (Iocs  not  How,  tho  crtrryiiij?  Imsincss  from  stltDail  to  the  |)oit    .f 
I'liihi'lclpliia  l)eiii<5  governed   as  well  by  the  maritime  as  ti\e  coniia  ni 

iilW. 

I  have  said  the  usage  would  have  been  competent,  not  as  a  nil(>  nf 
j)aramoiiiit  ol)ligation.  but  :ts  subservient  to  explanation  of  a  l.-itont 
ainl>i<«nitv  in  the  bill  of  lading,  if  that  term  may  with  pro[»rit'ty  '"■ 
applied  to  a  fresh-water  transaction.  I  do  not  say  there  was  in  fart  :in\ 
ambiguity  in  the  paper  signed  by  the  agent  of  the  defendants.  T!i'^ 
words,  '•  unavoidal)le  (iangers  of  tiie  river,"  seem  to  me  e<piii)olhMit  t.i 
the  words,  "perils  of  the  seas."  in  a  policy  of  insurance;  and  tln'^i' 
;u'e  well  understood  to  mean  those  dangers  which  arise  from  teniii('Nt», 
storms,  rocks,  and  sands;  they  are,  in  fact,  the  unavoidable  dangi-is  of 
tlie  seas.  There  are  indeed  other  dangers  that  may  justly  be  said  ti  lie 
of  the  seas,  but  as  these  may  be  averted  by  hinnau  effort,  the  risk  t'lnm 
them  must  be  borne  by  the  master  or  owner,  and  not  by  the  underwriter 
who  is  an  insurer  against  only  extraordinary  perils;  so  that  it  ni  \'.  in 
general,  be  said  the  responsibility  of  the  one  begins  where  that  (  i  th  • 
other  ends,  the  goods  being  covered  from  all  risk  whatever.  It  is. 
therefore,  fair  construction  to  say  the  excepting  of  the  unavoidtihli' 
dangers  of  the  river  meant  no  more  than  the  exception  which  is  inmiL' 
by  the  common  law. 

I  at  first  thought  that,  as  the  carrier  was  in  effect  an  insurer,  the  iHanro 
of  the  |)articular  river  might  be  permitted  to  operate  on  the  contract,  just 
as  the  usage  of  a  particular  trade  is  permitted  to  operate  on  the  contrint 
of  insurance.     But  the  relaxation  of  the  comuu)n-law  rules  of  evideiKO  in 
the  case  of  a  policy  arises    from  the    clumsiness    of   the    instrument, 
which    lias   undergone  little    or  no    alteration  since  it  came   into  ii^o, 
although    the   ever-varying   circumstances   of   trade   have    produced  a 
variety  of  corresponding  nioditications  of  its  obligation  which  is  i>fton 
independent  of  its  terms.     Hence,  the  usage  of  every  particular  tv!:  > 
necessaril}'  enters  int(^  every  policy,  an<l  is  resorted  to  for  the  purj)o^   ■ 
explaining  and  even  controlling  those  parts  of  the  instrument  wli:i  i'  .r> 
merely  formal.     The  contract  of  the  carrier,  however,  is  ([uite  a  (lilt." 
ent  thing.     It  is  not  in  the  form  of  an  instrument;  but  the  parties  :ue 
supposed  to  express  their  meaning  specially,  without  regard  to  tin!. 
It  is  not  a  contract  of  indemnity;  and  that  the  carrier  is  an  iiistirei  i- 
not  its  object,  but  the  consecpience  of  the  extraordiiitiry  diligcucf  lie  is 
bound  to  use.     It  is,  therefore,  to  be  construed  strictly  according  i»  tlie 
rules  of  the  common  law.     It  seems  to  me,  therefore,  the  only  erim 
the  judge  committed  was  in  favor  of  the  defeiidants  lielow,  in  peniui- 
ting  them  to  give  e\idence  of  the  commercial  meaning  of  the  wonU 


m 


iii 


11. 


CAKRIKK    AND    (  ISTOMEK. 


Ilhif^tnitive  Ciises. 


"  iiiiavoidahk'  (lan<:i  rs  of  the  river,"  which  wore  too  cU'iir  of  theiiiselv«'s 
to  atiinit  of  intorprctatioii. 

t onrinriiiir  witii  inv    Itrftlircii  tiiat  the  otlui'  errors  have  not  been 
sn-raiiu'il.  I  am  of  opinion  that  the  judgment  ou<iht  to  be  atlirmed. 

Dl.ncan,  .1..  delivered  an  opinion  concurring  with  the  ciiicf  justice. 
Judyiaeut  riu-erneil  dud  a  oenire  fudu.-i  de  nuco  awarded. 


i 

! ;    7 ' 

1  !  M 

li 

i'    t     : 

' 

, 

'  i  '\ 

''■  '.  ? 

' 

■     |i 

^li 


12.    SAME  — T'^S AGES    EXCUSING   NOTK'E   OF    ARRIVAL   OF   GOODS. 


'm 


Farmers  and  Mkciianio"  Bank  w  Chamilain  TiiANsi'ORTATioN 

COMI'AW.* 

la  the  Supreme  Court  of  Vennotit,  Januavfi,  1844. 

Hon.  Chaki.e.s  K.  Williams,  Chief  Jtmtice. 
"     Isaac  F.  Rkiu'ikld,  j 
"     MiiA)  L.  Bknnktt,     >  Jiiihjps. 
"     WiM-iAM  IIki5ai:i),     ; 

1.  Kvi'lcnro  of  the  usajje  of  business  of  the  carrier  ami  of  the  public  is  receivable  to  show 
wliiit  class  of  i)ro|)erty  the  carrier  is  responsible  for  as  such,  when  iiis  liabilty  com- 
iiii'iici'.-,  and  when  it  ceases. 

J.  W'licrc  tlie  "k'fendants,  wlio  were  common  carriers  on  I-ake  C'hainplain,  were  intrusted 
witli  a  packajre  of  bank-bills  to  carry  from  15.  to  I'.,  directed  to  llic  cashier  of  the  bank 
at  I'.,  and  they  delivered  them  to  the  wharfinger  of  the  wharf  at  P.,  at  which  place 
tiieir  boat  touched,  from  whom  the  package  was  stolen,  in  an  action  by  the  consignors 
for  the  loss:  luld,  on  the  llrst  appeal,  that  it  was  compclent  for  the  ilcfemlants  to  pnne 
llial  it  was  their  uniform  usage,  well  known  to  the  plaintiffs,  to  deliver  such  packages 
iif  money,  when  intrusted  to  them,  to  the  wbarliiigcr  having  ('hargi;  of  the  wharf  where 

the  beat  landed,  without  giving  any  notice  to  the  c sigiu'c.     llrlil,J'iirtlie.r,  on  a  second 

api-ci!,  that  it  was  not  essential  to  show  that  the  plaintitts  had  actual  knowledge  of  this 
usage. 

TitKSPAS.'s  on  the  case  against  the  defendants  as  common  carriers  of 
.•roods,  etc..  fioni  Burlinaton  to  IMtittsltiirgh,  New  York.  'I'hc  declaration 
alleged  tlitit  tlie  plaintiffs  delivered  to  the  defendants,  aii<!  the  defend- 
ants accepte<l  a  jiackage  of  Icmk-hills  amounting  to  $1,10',),  dircctcti  to 
Richard  Yates.  Esq.,  cashier  of  tiie  Clinton  County  Hank,  at  Tlattsburgh, 
■  t(i  he  safely  and  securely  carric<l  and  conveyed  by  the  sttid  del'ciKliuits 
from  Biu'liiigton  aforesaid  to  I'hittsbiirgh  aforesaid,  and  then,  to  wit,  at 
said  I'lattshmgh.  stifdy  and  securely  to  be  delivered  to  .said  Richard  Yates, 
I--'!.,  ctishier;"  but  that  the  package  was  never  delivered  as  tlireeted, 

♦  Keported  HI  Vt.  5-.>. 


'I' 


■'■>•> -I 
.1  '. '.I 


,)  m 

-.PM 

If'  ■ 

■if} 
'■  I  '.I 


1 


! 


I 


\  » 


h 


I 


I, if 

III 
\4 


111  I 


134 


IN    l>II'l'KltKNT    i:i;LATIt-»\S    .\M>    OCCUl'ATK  »NS. 


Fanners  and   Mfcliaiiics'  IJaiik  ".  (^liaiuplain  'rrans|»)rt,iti()n  Co. 


I)iit,  throii<i;li  till"  m'irli<r»'ii('i'  :iii!l  cmitIossiu'ss  of  the  (U'ft'n<hiiits  \v;is 
lost.      I'lea. :    tlie  h'IummI  issue,  and  trial  by  jury. 

It  :ij)|)e:ire(l  on  trial  that  the  ijackaiic  was  (U'livorod  by  the  teliei-  nf 
the  plaintiffs"  hank  to  the  caittain  of  tiie  defeiwlants'  ferry-boat  .Inne  .'>, 
lH;{i),  and  tha*  '.vhen  the  boat  arrived  at  I'iattsbiu'nii  the  capt.aiii  dc!i\-- 
ered  the  packaiic  to  one  Ladd,  tlu'  \vliarfin<>;er,  to  carry  to  tlie  bank.  l>iii 
that  while  in  Ladd's  possession  it  was  stolen,  and  never  reaeiied  tli,> 
bank.  As  to  whether  theiv  was  any  particular  nnderstandinji  or  aLini- 
ment  between  the  teller  anil  the  captain  tiiat  tlie  latter  sliould  deliv  ■!• 
the  package  to  Vates  or  at  the  bank  in  I'lattsluugh,  the  testimony  \v;i-i 
contradictory.  ^ 

It  was  conceded  that  the  defendants'  l»oat.  at  that  time  and  diiriiii 
the  season,  was  entjaiied  in  transportinsj;  a;oods,  etc.,  from  Hurlini>tiHi  tn 
St.  Albans,  touchinir  at  Port  Kent  and  Plattsbnr<>h  only  loni>;  enonuli  In 
<lisehar<>'e  and  receive  fi'ei<i;ht  and  passencjers.  The  court  havinii'  inti- 
mated to  the  counsi'i  that  they  should  diarize  the  jury  that  thonuii  tin' 
defendants  miuht  be  conunon  carriei-s  of  ordinary  j^oods.  etc.,  yet  it  w.is 
not  to  bo  taken  jirima  facie  that  they  were  common  carriers  of  bank- 
bills,  the  plaintiffs  introduced  evidence  tendinu;  to  prove  that  the  defend- 
ants, prior  to  and  until  the  time  of  the  delivery  of  the  packaiic  in 
question,  had  not  only  held  t'.iemselves  out  to  the  i)ublic  as  conniinii 
cai'riers  of  bank-bills  as  well  as  of  ordinary  o-oods,  etc..  without  distinc- 
tion, but  had  in  fact  become  such  by  their  course  of  business. 

The  defendants  thereupon  offered  to  i)rove  —  which  liad  been  l)efore 
offered  l)y  them  and  excluded  by  the  court  —  that  it  had  ever  l)een  the 
constant,  uniform,  and  unvaried  usa^e  and  custom  of  all  the  1)oat.s 
belongin<>-  to  the  defendants,  and  of  all  the  masters  and  otiicers  thereof, 
and  particularly  of  this  ferry-boat,  when  tliev  received  j)acka<i('s  uf 
money  like  the  one  in  question,  to  carry  to  any  i)lace  on  the  lake,  mid 
particularly  to  the  bank  at  Plattsburo-h,  to  deliver  them  to  the  whiirf- 
injjjer,  for  him  to  carry  to  tlu'  bank,  as  was  done  in  this  case,  and  ii"t 
to  the  consi<rnee,  and  this  without  jiivino;  any  notice  to  the  i-diisi^iice; 
and  th.'it  this  uniform  custom  was  well  known  to  the  cashier  of  the  |il;ii:i- 
tiffs'  bank,  and  to  Dr.  Peck,  president  and  a  director  of  said  Imnk  ;it 
the  time  of  the  delivery  of  said  i)ackai>e.  This  was  ol)jected  to  liy  tl.i' 
plaintiffs  and  excluded 


>,>■ 


by  the  court.     Kxceptioi 

The  jury  returned  a  verdict  for  the  ))laintiffs. 

C  Adatns  and  />.  A.  Smallc;/,  fov  llie  (Ud'endants. — The  plaintiffs 
count  upon  a  special  undertakinj;  to  deliver  the  i)ackagi'  to  Richard  Vates, 
at  the  Plattsburs^h  Vnuik.  Upon  this  p:»int  the  testimony  was  contradic- 
tory; and  how  the  fact  was  found  does  not  ai)pear,  nor  whether  thnt 


CARKIKK    AND    CUSTOMER. 


13o 


lilii.slnitivt'  Cases. 


(|iu-.tioii  Wiis  siil)initte(l  to  the  jury.  It  was  competent  for  tlu;  parties 
tn  li:i\('  iniul(!  sucli  .special  contract,  and  on  proof  of  it  the  phiiiitiffs 
iiiiLilit  have  recovered;  but  in  that  event  the  creneral  UaltiHty  of  c(jniinon 
ciiiriiTs  WDiiM  not  have  been  drawn  in  question.'  'I'hc  case,  apparently. 
'.va>  put  upon  tlie  i^rouiid  that  such  contract  was  nniniport^mt.  and  thut 
thr  Di'dinary  ihity  of  carriers  involve<l  the  same  duty.  liut  the  defend- 
ants, as  carrier.s  l»y  water,  would  not  necessarily  l)e  carriers  lieyond  the 
wiiai  f  .it  l*lattsl»uri;h  ;  ami  if  there  was  any  undertaking  to  carry  Iteyond 
liif  wharf,  it  must  i)e  proved  by  an  e.Kpress  contract  to  that  effect,  or 
iiiipheil  from  the  general  coui-se  of  business,  or  the  particular  usage 
whiiii  hail  i)l)fained  lietween  tUt'se  parties.'-  The  undertaking  of  carriers 
of  ^(lods  geni'rally  is  .satisiied  by  a  delivery  of  the  arti(."les  at  the  usual 
wi::,rf  at  the  [)ort  of  delivt.  y. '  In  this  case,  then,  the  plaintiffs  must 
show  a  distinction  betwi'en  the  liability  of  carriers  of  goods  geni'i'ally 
ami  carriers  of  |)ackages  of  !)ills.  Carriers  may,  it  is  true,  e.vtend  their 
husiiicss  to  carrying  packages  of  bills,  but  it  is  at  their  electi(m  whether 
they  will  do  so. '  Whether  carrying  packages  of  bills  came  svithin  t!ie 
(U'i'eiidants'  ordinary  business  was  matter  of  I'vidence.  The  plaintiffs 
IkuI  a  riglit  to  prove  ••that  the  tlefenlants  had  i»ec  mie  carriers  of  l>ills 
us  well  'IS  of  or  lin  u'y  g  )0  Is  and  ni.irclian  Us^' ;"  aud  this  right  in  the 
plaintiffs  involves  a  i;orresponding  right  in  the  defendants  to  introduce 
eviileuce  to  ri'Imt  it.''  The  defendants,  then,  should  have  bi'cn  per- 
niitte  1  to  prove  their  uniform  custom  relative  to  the  delivery  of  pack- 
aires  at  tiie  wharf  to  the  wharlinger,  without  notice  to  the  consiii-ni'e.  and 
tlie  kuowh'ilge  of  the  [)laintiffs  of  the  existence  of  this  uniform  custom." 
C.  IJ.  /urs.son,  for  the  plaintiffs.  —  1.  The  case  shows  that  the  jury 
found  (1)  that  the  defendants  were  common  carriers:  (2)  that  they 
were  common  carriers  of  this  species  of  property  ;  (•">)  that  they  received 
the  package  in  (piestion  as  common  carriers,  and  that  the  captain,  in  re- 
ceiving the  package,  acted  as  captain  and  agent  for  and  in  behalf  of  the 
d  I'l'iidants.  The  duties  of  a  common  carrier  are  such  as  are  atli.\ed  to 
this  vocation  i)y  law,  and  do  not  result  from  the  contract.  The  delivery 
by  the  consignor  and  accei)tanci'  b\'  the  carrier  are  all  that  is  necessary; 


■ '.  I!! 


,*HI 


S  i 


•  'I 


f, 

i-f-i 
I  'J 


i 


-5.'  ^% 


'  (JaiMile  r.  Navi^jatioii  (:!o.,  4  Term  Kcp. 
:»\:  llyilu  r.  Trent  \av.  Co.,  .">  Term  Kep. 
:i>'.i;  tiiiliien  r.  Mainiiiij,',  i  W.  I'.hu'k.  lUO; 
Arklt'v  c.  Kenog^',  S  Cow.  i>:i;  St.  Joliu  i\ 
V;iii  >aiilV()or(l,  i5  Weiul.  GtiO. 

■  I'luti  r.  Uibbiint,  7  Cow.  4!)7. 
Ctiickeriii},'  V   Fowler,  4  Pick.  :571 ;  Abb 
on  siii|i.  XI 

'  ^t')iy  oil   Bail.  300,  301,  ;V.>8;  Sewall  v. 
Alien.!)  Weuci.  ;{;»5. 
^  sowall  V.  Allen,  (J  Wend.  33i>. 


'•  Gib-on  V.  Culver,  17  Weml.  30.5;  <)-tr:iii- 
iter  r.  I'.rown,  15  Johns.  3'.);  Story  on  Hail. 
:U.-),  34ii;  Uushfortli  c.  Iladdeld,  7  Kasl,  •224; 
Cole  /•.  (toodwin,  I'.t  Wuiid.  ■l')\ ;  Car.-ide  v. 
Navi.;;ation  Co.,  4  T(;riu  Kep.  5>i-2 ;  Myil«'  c. 
Trent  Nav.  Co.,  .5  Term  Ke)).  ;i90;  St.  John  r. 
Van  Santvoord.  2.")  Weml.  t')t>0;  Hlin  v.  .Mayo, 
10  VI.  Vi;  i  Kent's  Conuii.  604,  H05;  Story  on 
Uail.  :U:;-:U6,  352,  5«6;  .Sewall  v.  Allen,  6 
Wend.  33o. 


I.'k; 


iN    DIFI  KKKNT    KiiLATIONS    AND    OCCUPATIONS. 


Farmers   and  Mccliiiiiics'  Bank  v.  C'liaru|ilain  Trail -poi-tal ion  Co. 


h'J 


tilt'  law  tlicii  stops  in  an'l  helps  out  tlio  contract  by  a<Min^  tlicit'io  ili- 
duty  of  trapspurt  and  (U-livcry  to  the  coiisignoe.'  The  duty  is  not 
confined  to  the  mere  carrvins^,  hut  cxti-nds  also  to  a  doliveiy  to  tlio 
consii^uce.  or  a  d  'livery  at  some  i)roper  place  with  notice  to  the  con- 
signee.'-^ 2.  The  duty  bein'j^  to  carry  and  deliver,  we  contend  (  1 )  tiiat  llir 
defendants  cannot  restrain  it  by  any  implied  contractor  particular  us!io;e  ; 
and  (2)  that  they  have  not  so  done  in  this  case.  The  case  shows  that  the 
package  w.as  at  least  delivered  to  the  defendants,  and  l)y  them  acce[)ted.  as 
carriers.  This  is  sufficient  to  constitute  the  necessary  contract,  and  ipso 
facto  devolves  upon  the  carriers  tiie  duty  of  transport  and  delivery.^ 
3.  The  case  further  shows  that  the  parcel  w.-is  directed  to  "  Richai'd  Ytitc^. 
P^sq..  cashier,  Plattsburgh.  N.  Y."  'IMie  carrier  must  deliver  according  t) 
the  direction;  and  when  no  direction  is  given  except  the  address  npun 
the  parcel,  that  is  his  "direction.""'  4.  The  case  admits  that  the  lioat 
ran  to  Plattsburgh.  and  that  the  <lirection  of  the  i)arcel  was  at  l*latt>- 
burgh.  The  term  "  Flattsl)urgli."  to  which  tiie  defendants  were 
common  carriers,  is  nomfn  coUei'^huim,  and  extends  at  least  to  the 
whole  port,  or  village,  or  settlement  at.  on,  about,  or  near  *^'\c  landinir. ' 
5.  The  usage,  which  the  defendants  offered  to  show  was  inadmissilijc.  as 
contravening  the  general  law  of  the  land."  We  do  not  deny  that  iisa«re 
is  admissible  in  some  cases  arising  under  the  law-merchant,  —  us;ii!»'-: 
of  trade  to  determine   the    liability  of   underwi-iters   on  questions   of 


1  Lane  »•.  Cotton,  1  Salk.  143;  s.  c.  1  I>cl. 
Riiyiii.  (>4i<,  per  I'fiwys,  J.,  and  (ityl,  per  Lonl 
Holt;  CogRs  c.  Ueniard,  2  I.il.  liaym.  !tl8; 
Up.sliare  v.  Ai<lee,  Com.  'J.t;  (iosliiij;  r.  Hi;?- 
gins,  1  Camp.  4.J1;  Forwanl  c.  I'ltiard,  1 
Term  Kep.  :!3;  Kiley  r.  Hoi-ne,  fi  liing. -217. 

-  Rich  V.  Kneeland,  Cro.  .lac.  :!;50;  per 
Lord   Holt  ill  Lane  v.  Cotton,  1  Ld.  IJaym. 

652:   Taylor    v. ,   2    Ld.     liayni.    7:12; 

Brown  v.  Hodgson.  4  Taun.  189;  Hyde  v. 
Trent  Nav.  Co.,  it  Term  Hep.  390;  in  re 
Webb,  2  J.  15.  Moo.  ."iOO.  Story  on  Biiil. 
;i4.5-;!47;  iratclnvcll  v.  Cooke,  C  Taun.  .577; 
liodenhaiii  r.  licmiett,  4  I'rice,  .'U  (cited  In 
IHiff  r.  Hilda,  r,,J.  1$.  >roo.4(!9) ;  (JriOitli  r.  Lee, 
1  Car.  &  P.  110:  Orange  Bank  v.  Brown,  :i 
Wend.  Itil;  Ue  .Mott  i-.  Laraway,  14  Wend. 
22t>:  Klliot  i:  Ro.>^soll,  10  .Tohns.  1;  Ostraiider 
r.  ISrowii,  1")  Johns.  159;  HoUi.ster  v.  Nowlen, 
l!i  Wend.  239;  Bowman  t'.  Teall,  23  Wend. 
30*1;  St.  John  r.  Van  Saiitvoord,  25  Wend. 
liiiO  ;p<'r  Verplaiick,  Sen.,  in  Powell  v.  Myers, 
2U  Wend.  5!Hi;  Sewall  v.  Allen,  6  Wend. 
3;55. 

^  Rich  I'.  Kneeland,  Cro.  Jac.  330 ;  per  Lord 
Holt  in  1  Ld.  Raym.  652;  Taylor  i>. ,  2 


Ld.  Raym.  792 ;  Tichburne f.  White,  Strii.  14.i; 
Stuart  r.  Crawley,  2  Stark.  N.  V.  ;!2:J;  or- 
ange Bank  r.  Brown,  3  Wend.  161;  H(illi> 
ter  r.  Nowlen,  19  Wend.  239;  Camden,  cic, 
Transp.  Co.  c.  Belknap,  21  Wend.  3.")4  :  -t. 
John  r.  Van  Santvoord,  2.'>  Wend.tJOO. 

*  Rich  i\  Kneeland,  Cro.  Jac.  ;(;«);  Tavlor 

V. ,    2    Ld.    Raym.    792;    Halchwcll    r. 

Cooke.  (1  Taun.  .")7";  Birkett  v.  Will.ni.  i 
Barn.  Ac  Aid.  3.56;  Stephenson  r.  ll.irl,  i 
Bing.  476;  and  St.  John  v.  Van  saiitVD.ncI, 
25  Wend.  't'M\.  where  the  case  was  iduiitl'al 
with  this  on  this  point. 

i  Birkett  o.  Willan,  2  Barn.  &  Aid.  :'<6\ 
Beckford  r.  Crutwcll,  5  (;ar.  &  I'.  24J;  os- 
traiider r.  Brown,  15  Johns.  :!9. 

>■'  Upshare  v.  Aidee,  Com.  2.i;  Oppeiihcim 
r.  Russell,  :J  Bos.  A.  I'ul.  45;  Ostraiidti'  r. 
Brown,  15  Johns.  39;  Bryant  r.  Coiiiiiinii 
wealth  Ins.  Co.,  6  Pick.  146;  Kager  c.  .\tl,i* 
Ins.  Co.,  14  Pick.  141;  Crosby  r.  I'itiii.  I-' 
Conn.  410;  Cole  c.  Goodwin,  19  Weiul.  •-'."iii; 
Clark  r.  Faxton,  21  Wend.  152;  lioiild  <■  Hill, 
2  Hill,  624  (citing  opinion  of  .Story,  J-.  '" 
case  of  The  Reeside,  2  Sumn.  567). 


It.i; 
<»r- 

.His- 
clc, 
~t. 

ivl'iv 

•ll  r. 
Ian.  i 
irl.  i 

Vu.ill), 

.;.'i6 ; 

t  IS- 

iilii'im 

il.-i-  <: 

rn.    1.' 

1.  ■:.■>'.•; 

'   Hill, 
J.,  ill 


i- 


(    \Ki;lKi:    AND    <  IMUMUC. 


187 


Illii-iraiivc  ("iiM' 


ilivi.itimi.  etc.  i'ti'..  —  l>iit  it  will  lie  Dliscrvcil  tlinl  in  liirs*!  (uisi-s  tin-  l:i\v 

it»flt'  is  l>:i-t'(l  ii|»iii  |t:M'tii'iil;ir  ii-^:iiii's  in  |t;irtiiMil;ir   phiccs  or  in   piirtii'ii- 

l:ir  tia'lt's.     i!.    We  clnini  tliiit  if  it  In-  in'iinitlcd  to  ni;ike  an  int»'i|»!il;i- 

li.iii  into  tlic  coninioii   law  Ity  locjil   nsairt'.  this  nsajj*'  dot's  not   attain   to 

ilint   iliirnity.      W"  arc  awaff  that   in  sonic  few  instances  conrts   li:ivt! 

hciil  tiijit    tilt'    ix^^'neral  course  or  nsairt'  of   'radt'   in  a  oivcn    port   will 

L'^.ivcin  tlu'  niixlc  of  fiiKilliiiir  the  oliliirations  !i2>posc(l  by  law  upon  car- 

lii  Ts.      lint,  on  the  fullest  i'xaniination  of  a!';  t..e  eases,  not  one  is  to  be 

fiiiiii<l  where  even  in  the  ohitt^r  <lf<;f(i  of  the  .j':ii<;es  they  have  ever  allowed 

tli.it  the  mere  usasTC  of  the  particular  carrier  himself  would  be  sntHcient 

1(1  -.iilivert  the  law  of  the  land,  or  in  anywise  affi'ct  his  liability,  exeept- 

mtr  tlie  i-aso  of   (iihxou  v.  (Uilrcr.^     That   was  a  case  of  a  mail-coach, 

and  ('o\vi.N.  J.,   who   delivered   the  opinion,   lays  stress  on    that   fact. 

But  ail  the  cases  on  which  that  opinion  is  based  are  mere  oh'tf.r  dn-fd 

of  the  indices,  or  cases  of  a  general,  uniform,  notorious  local  caistom  of 

Till'  |il!ice  or  of  trade.     Hut  that  case  has  been  substantially  overruled 

tiv  the  -;ame  court  in  Ilo'llnter  v.  Nowl^n.-     It  is,  moreover,  in  direct 

hostility  to  the  whole  course  of  English  decisions,  jind  the  former  deci- 

NJoiis  in  Xi'W  York.  Ostnindt'r  v.  Brwrn,  and  many  other  cases.     It  con- 

tlids   with  Judge    Spoiiv   in  the  case   of     The    lic.e.side,'^  and  linds   no 

wiMiMut   in   Lord   Kknyon's  speculations  in    Iljfde  v.  Trent   Nui'iijation. 

('niiiiiiiiifi.'*  in   which  the  other  judges  differed  from  him,  for  he  only 

iloulited   as    to   the  effect    of   the  general    usage    of    trade    or    of    the 

plMct'.     In  Gnth'Jf'e  v.  Bourne  ^  an  attempt  was  made  to  raise  the  ques- 

timi  iM'ide  in  this  case,  but  it  failed  on  demurrer  to  special  pleas;  and 

it  is  well  remarked  by  Buonsov.  C.  J.,  in  IlolU^ter  v.  Mowten/'  that  the 

'I'xtrine.  if  it  ever  existed  in  England,  is  long  since  exploded.     If  such 

:i  iisiigc  can  <lischarge  the  carrier,  ihen.  as  was  well  said  by  Hijonson, 

C.  J.,  in  (.nlc  v.  Ooodwin,   "a  usage  of  mere  neglect"  may  be   inter- 

p  i>,(il  to   justify  him.     7.   lint    the  usage  offered   to   be  shown  is  no 

usage.     The  offer  was  to  show  that  the  cai)tain  was  in  the    habit  of 

•  Itiivt'iing   to   Ladd,   "for   him  to  carry  to  the  bank."      Ladd.  then, 

iirtfil  as  :)gent  for  the  l)oat.     Neither  the  consignees  nor  the  plaintiffs 

ever  employed  him.  but  the  captain  did.     It  is  a  mere  offer  to  show 

that  the   defen(hints    have  used  a  course  of   negligence   in    delivering 

ijioods.  ()!•  else  to  show  in  what  manner  they  have  hithertij    done,    or 

pidciu'ed  to  he  done,  their  own  business. 


I  17  W,.|wl.  :;(i.-). 

■  I'l  Woml.  -i;!'.!;  Colo  r.  tJoodwin,  19 
W.n-I.  r.l;  Claik  I-.  Ka\ton,  '.M  Wciul.  ]5'2; 
I'.'.winaii  V.  'roaU,  .•:{  Woiid.  :i(Mi;  St.  John  i'. 
\  an  saiitvimiil,  A")  Weiul.  (iOO;  Goul<l  r.  Mill, 


a  2  Siinin.  .WT  (cited  in  i  HiU,  «i.i4). 
<  r>T(!riii  Ifep.HiH). 
6  2  Moo.  &  K.  100. 
0  l!i  Wfiiil.  -iW. 


i:! 


r 


1 1 


1 


h 


!'''■ 


W' 


t  I 


: 


i 


Mi 


i 


1  />.s 


IN     DIFbKUEM'    KKLATION.")    AND    <  h;(  L  I'A  I  iON.S. 


Fannurs  and  Mt'i.-lijiiiiri'  Itiiik  »•.  rii.iinplaiii  Triin«i|>i>rt:itiMii  Co. 


Wii,r.i\M>,  ('.  ,J..  (Iflivt'ii'd  the  opinion  of  tin-  court. 

Tliis  case  lia«  l)(H'n  t-lalioniti'ly  nr<;iu'il.  hiit  I  ii|»|tri'li('n<l  it  does  not 
iiivolvf  an  inv«'stiijati(»u  of  all  tlu'  law  and  Ifarninj^  lu'sloweil  upon  it. 
'Die  liist  i|iu'stion.  as  to  tin-  interi'st  of  Mr.  Warner,  the  cashier,  it  is  nni 
necessary  to  de' '  '•.',  as  the  casi-  is  to  l»e  sent  for  another  trial  on  anotln  r 
point,  and  it  is  in  the  |)ower  r)f  the  |)laintiffs  to  fcniove  all  (inestions  oii 
this  sut\ject  l)y  executing  to  Mr.  Warner  a  releasi'  of  all  claims  on  liini 
arlsiiiir  out  of  tins  transaction.  The  court  are  of  o|)inion,  on  the  otiici 
questions  raised,  that  the  eviilence  tending  to  prove  custom  and  usaye, 
juid  the  knowle(l<re  of  the  plaintiffs,  should  have  Iteen  admitteil. 

Whoever  hold  themselves  out  to  the  world  as  common  carriers  must 
<lo  all  rcipiired  of  them  as  such  l»v  law.  and  may  not  refuse  in  [»articiil;n 
instances  without  sutlicient  cause.  Hence,  when  the  defendants  iielii 
themselves  out  as  common  cairiers  of  jroods  or  money  from  Hurlin;j,toii 
to  l'lattshur<:,h,  or  cLsowhere,  they  assumed  all  the  duty  and  responsibility 
attached  to  them  in  that  character.  It  beconjes,  therefore,  important 
to  tlu'in,  as  well  as  the  conuniuiity  ireiierally,  to  ascertain  what  are  tlmx' 
duties,  and  how  far  they  can  l)e  moditied  by  contract.  usai>v<»f  biisiiic», 
or  their  paiticular  tisajjje.  No  one  seems  dis})osed  to  ((uestion  but  tluit 
they  were  responsible  for  the  safe-keepini^  of  money  or  <roods  from  the 
time  they  received  them  luitil  they  delivered  them  at  the  place  of  tluit 
destination,  notwithstandin<>"  the  loss  n»ay  have  happened  without  any 
fault  on  their  part  And  if  the  law  is  as  strict  and  unltendinji;  as  tlii' 
counsel  for  the  plaintiffs  contend,  no  proprietors  of  steami)oats.  rail- 
ways, or  stages  could  with  safety  or  proi)riety  become  common  carriers: 
nor  if  it  be  their  duty,  from  which  they  cannot  exempt  themselves,  to 
deliver  every  package  or  parcel  intrusted  to  their  care,  to  the  individii;il.<i 
to  whom  they  may  be  directed.  The  boats  do  not  stop  at  the  different 
landing-places  long  enough  to  tleliver  to  every  individual  in  that  town 
the  parcel  directed  to  him.  Railroad  cars  cannot  deviate  from  tluir 
track,  nor  stages  go  to  the  house  of  every  individual  on  their  route.  Mini 
of  course  they  must  employ  responsible  agents  to  perform  that  wliicli 
they  caiuiot  do  themselves.  I  ai)preliend,  however,  that  this  burden  is 
not  thrown  on  then»,  l)ut  they  may  prescril)C  the  mode,  the  manner,  ami 
the  i^lace  where  they  will  deliver  the  goods,  and  those  who  an' 
acquainted  with  their  rules  and  regulations  in  this  particular  innst 
abide  by  the  consequences.  In  the  case  of  Garside  v.  Proprietors.^  it 
was  determined  that  the  duty  of  the  defendants  as  carriers  ceased  when 
the  goods  were  landed  at  Manchester,  although  they  were  put  into  liic 

>  4  Tenu  Kep.  580. 


! 


■ 


CAHKIKK    AND    (  L'NTOMKK. 


l.i!» 


Illll>ll;lii\i'    (';i>»'S. 


■liniisc  of  tlii"  ili't'»'ii<liiiits,  tiiitl  well'  tlu'ii'  coii-^miiumI  hy  an  aiiiilfiital 


WMli 

liiv. 

riic  <Iiity  of  tlu'  caiii"'!'  (•Diiiiiii'tict's  when  flic  uinxls  art'  ilflivncd  td 
him.  ami  it  is  (•(tiict'ilcil  tiiat  a  ixTsoiial  dcliviTV  is  not  iciiiiirtMl.  lie 
iii.iv  ilivc  notice  wlu'if  lie  will  nMcivc  ;j:ikh1s.  at  what  place  tlicv  may  lie 
(ii'liMsitcd,  and  liis  iisauc  and  cii-»ti.ui  in  tliis  |(articnlai'.  it  li.-is  ncvci-  occn 
(j.i  lilted,  is  snllicient  to  fliaii>e  liiiii  with  the  reception  an<l  the  coin- 
iiiiiiciinent  of  his  risk.      IIi«s  iisaue,  as  well  as  the  u^ai^e  of  Itiisiness.  is 


to    he    rect 


ived  as  competent    nnd    proper  evidence   to  sh 


ow    when 


th 


Ills  are  to   he  considered  as  coming   into   his  cnstodv.      I  >ee  n 


<( 


rr;isi)M  why  the  sanu'  evidence  slionid  not  he  received  to  simw  the  time 
of  his  (nidertaUiiiii'.  the  place  where,  or  the  [leison  to  whom  he  contracts 
to  deliver  fjfoods  intrnsted  to  his  care.  .\nd  if  the  person  wlm  cmph^yfi 
the  carrier  knows  of  this,  he  cannot  contiMid  that  the  nmlcrtakinn'  of 
tlic  cMrrier  was  m  )re  extensive.  I  tipprehend  it  will  he  found,  on  tin 
examination  of  the  anthoritios.  that  when  connecting  lines  are  ein;iloye(i 
in  till!  transportation  of  i«()0(ls.  and  when  the  employment  of  whai'liicicrs 
<ii'  receivers  as  independent  carriers  is  retpiisite  in  order  to  forwaid 
u  '  "Is.  etc.,  to  tlu'ir  nltimate  destination,  the  liahility  of  tin'  tirst  carrier 
will  dciHMid  entirely  on  the  fact  wliether,  by  the  contract,  the  whtirlinocrs, 
etc.,  are  to  he  considei'eil  as  his  a<>;ents,  and  sul)sidiarv  to  his  nudci-- 
takiiiir.  Mnt  when  it  is  understixxl  by  the  contracting  })arties  that  he  is 
to  deliver  them  to  anot'ier.  oi'  at  a  place  certain,  the  duty  of  the  carrier 
terminates  at  that  particnlar  place,  and  the  responsibility  ceases  on  the 
(leliviMV  at  that  place  to,  ami  the  receii)t  l)y  any  person  anthorized  there 
to  I'cceive  them. 

Tile  lirst  case  which  has  a  direct  bcarinjj  on  the  case  befori'  us  is  Gar- 
s'lli-  V.  /'roprietors,^  where  the  defendants  were  carrit-rs  from  Stonrporl 
ti)  .Manchester.  Goods  of  the  plaintiff  were  foi'warded  from  Stonrport, 
•lirected  to  Stockport,  beyond  Manclu-ster.  by  the  defendants;  they 
landed  them  at  Maiu-hester  and  pnt  them  into  their  own  warehouse, 
re  ( he V  wore  destroyed  ;   and.  inasmuch  as  it  ai)i)eared  that  accordin<>- 


\v!l( 


to  the  iisa<>e  of  business  it  was  usiud  thus  to  deposit  tlieni  wheii  there 
was  no  carrier  from  St()cki)ort  to  leceive  them,  the  defendants  were  held 
not  to  be  lialde,  as  the  goods  at  the  time  of  the  fire  were  in  their 
custody  as  warehousemen.  Now,  it  is  to  l)e  observed  in  this  case  that 
the  lioods  were  destined  to  a  place  beyond  Manchester;  that  the  defend- 
iiii's.  as  carriers,  received  them  without  direction,  and,  moreover,  that 
tluy  had  agreed  to  forward  them  to  St(jckport  by  the  first  carrier  that 
Id   arrive.     Tlie    authority  of    this    case     s   recognized  l)y  Judge 

'  4  Term  Itt'i).  'til. 


shon 


T 

P!il 

■  '.     i 

v\ 


'IP  fl 

hi 


;l  I 


u 


*    '■'M 

0^ 


^.i-i: 


I 


■'It*  I 

Eh 


f  f! 


m^i 


I  !'■'!, 


iif', 


l',^.i 


40 


IN    DIFFERKNT    RELATIONS    AND    0("(  UPATIONS. 


FiirmiTs   and  Mccliiinics'  Bank  v.  Chainiilain  Transportation  ('o. 

Stoijy  in  liis  treatise  on  Bailments,  an<l  was  also  roc'ojj^iiizod  in  tlio 
case  of  Hyde  aiijainst  the  same  dei'tMidants.'  altlionj>;li  a  tnajority  of 
the  judges  tlionsfht  it  to  be  the  duty  of  a  carrier  to  deliver  jjjoods  to  tlic 
persoi:  5  to  whom  directed  ;  but  the  usage  of  trade  and  business  as  modi- 
fying tlie  undertaking  and  regulating  the  place  of  delivery  was  recog- 
nized. In  the  case  of  Wardd  v.  Mo  ur  illy  an,-  Lord  Ki:nyon,  instead  of 
considering  the  duty  of  carriers  to  deliver  to  the  persons  to  wiioni 
directed  as  absolute  and  unqualified,  left  it  to  the  jury  to  say  what  was 
the  custom,  in  the  case  of  Catley  v.  WintringlKnii,'-^  evidence  of  cus- 
tom was  received  U)  ascertain  whether  goods  had  been  actually  delivered 
or  not.  The  case  of  //*  re  Webb'*  recognized  that  the  duty  of  carriers 
may  by  contract  be  suspended,  and  they  become  wareliousemeii 
between  the  time  of  the  reception  of  goods  and  their  delivery  at  the 
place  of  their  ultimate  destination. 

The  case  of  Gibson  v.  Cuh:er-'  is  more  imnie<liately  applicable  to  the 
present,  as  it  seems  to  be  similar  in  marv  resjjccts.     It  was  considered 
in  that  case  that  it  was  competent  for  the  defendants,  who  wert-  the 
owners    of  a  stage  from  Sand    Lake  to   Albany    via   Tro3',    and   liad 
received  a  box  of  combs  directed  to  Messrs.  Vail  &  Co.,  Troy,  to  show 
that  it  was  the  uniform  usage  and  course  of  business  in  which  they 
■were  engaged  to  leave  goods  at  th.  ir  usu-.l  stopjiing-place  in  the  town- 
to  which  the  goods  were  directed,  without  notice  to  the  consignees,  ami 
that  if  such  usage  was  known  to  the  plaintiff,  or  if  it  was  of  so  long 
continuance  as  to  justify  the  jury  in  finding  that  it  was  known  to  the 
plaintiff,  the  carrier  would  be  discharged.     The  authority  of  this  cn-f 
seems  to  l)e  so  decisive  of  the  case  before  us,  tliat  to  obviate  it  the 
plaintiffs  have  to  contend  that  it  has  in  effect  been  overruled.     In  the 
cases  of  Hollister  v.  Noiclen*'  and  Cole  v.  Goodin  n ,~  where  the  defeudaiiis 
were  carriers  of  passengers,  other  jjoints  were  raised  and  discussed.  ,is 
to   how  far   carriers  could  limit    their  comn.or.-law  liability  as  to  the 
safety  of  goods  by  a  general  notice;  yet  the  case  of  Gibsnn  v.  Cnh-'r 
was  not  impugned,  but  its  authority   iccognized.      In  the  case  of  Si. 
Joha   V.    Van.  Santoonrd.^  the  same  doctrine  contained  in  the   case  i  i 
Gibson  V.  Culver  was  recognized  and  acted  on.     In  the  case  of  Gould  v. 
Hill,'-*  conunon  usage  and  a  general  notice  is  considered  as  evidence,  nml 
that  it  may  be  urged  as  a  foundation  for  modifying  the  contract;  and. 
moreover,  Chancellor  Kknt,  in  his  Commentaries,  expressly  recogiii/.id 


'  p  'r»Miii  iti'p-  :!*'• 

-  1  Ksp.  (i!t:!. 

'■'  IV'iikc  N.  1'.  IfiO. 

<  >*Tiiiiii.  m;». 
f'  1"  Weiul.  :i05. 


"  I!)  World.  'IM. 
-  19  Wond.  'ir)\. 
"  'J.'i  Wfiid.  («iO. 
*i  Uill,ti23. 


fin 


CARKlhR    AM>    CUSTOMER. 


141 


Illustrative  Cases. 


t!u'  aiitlionty  of  the  case  of  Gibson  v.  Culccr.  Tln'  |)riii(ii)le  acknuwl- 
I'ljocd  and  cstaltlisliod  in  tliis  fasc  is  so  consonant  with  reason  and 
|iii)|»rioty  •  nd  ai)iH*arsi  to  inc  to  he  so  necessary  to  enalde  persons  to 
avail  tiuMnsclves  of  the  facilities  afforded  by  staijes,  steamboats,  and 
railroail  cars  to  tiaiispoit  ooods,  parcels,  and  packajjes  of  money,  and 
wliich  the  owners  would  be  compelled  to  abandon  if  tiiey  were  lej^ally 
liable  to  deliver  tlieui  at  all  events  to  the  persons  to  whom  directed, 
that  I  should  lie  <lisp'>sed  to  recooiiize  its  authority  unless  it  had  been 
expressly  overruled  and  a  different  principle  established.  But.  from  an 
examination  of  all  the  authorities,  I  think  I  may  safely  add  to  tiie 
ojii'.iioa  expressed  in  Blin  v.  Mayo,^  that  the  usage  of  business  in  the 
vicinity  may  be  received  to  show  when  the  liability  of  common  carriers 
ce;Ht'-;,  as  well  as  wlien  it  commences. 

It  is  to  be  observed  that,  from  the  case  as  presented,  all  we  are  called 
on  to  decide  Is  that  evidence  of  the  usage  of  the  defendants,  and  that 
known  to  the  president  .md  cashier  of  the  l)ank,  should  have  been  received  ; 
and  I  have  therefore  spoken  of  this  knowledge  as  important  in  the  case. 
Tlie  court,  however,  are  not  called  on  to  decide  whether  this  knowledge 
is  of  any  importance,  [f  the  evidence  had  been  admitted,  and  it  had 
fallen  shr)rt  of  establishing  the  fact  of  personal  knowledge  in  the  plain- 
tiffs, I  :im  not  prepared  to  say  the  defendants  would  have  been  liable. 
Tlie  court  bcdow  toW  the  counsel  that  althoujjh  the  defendants  might  be 
common  carriers  of  ordinary  goods,  etc.,  yet  it  was  not  to  be  taken 
j)n'inii  fiicip  that  they  were  carriers  of  packages  of  bank-bills,  like  the 
on>  in  dispute,  .uid  in  this  thev  were  undoubtedly  correct.  The  same 
kii'd  of  evidence,  then,  which  was  used  to  charge  tin'm  should  have  been 
receisinl  to  show  how  far  they  held  themselves  out  as  carriers  by  the 
course  of  il'eir  business  :  and  if,  from  the  course  of  their  business,  they 
held  theinseh '>s  out  as  carriers  of  goods  to  be  delivered  at  the  wharfs 
wliere  they  stopped,  or  of  money  to  be  delivered  to  the  i)erson  having 
the  viiw  of  the  wh.irf,  or  to  any  other  person,  it  may  be  (piestioned 
whether  the  plaintiffs  were  not  required  to  take  notice  of  their  usage  in 
this  particular,  and  also  whether  the  very  nature  of  the  business  of 
tnuispoiting  by  steamboats  and  railroad  cars  is  not  notice  that  they 
(••innot  eitlier  personally  deliver  to  the  consignees  or  the  persons  to 
whom  a,  package  of  money  is  directed,  or  send  word,  or  give  notice  to 
them  of  their  ariival.  Their  stay  at  their  stopping-place  is  so  short  that 
notice  could  not  be  conveyed  to  any  person  at  any  distance  from  the 
wharf  or  place  of  deposit ;  and  unless  they  stipulate,  either  by  special 
lonlract  or  general  usage,  that  they  will  see  that  goods  or  money  are 

1  10  vi.  .vi. 


<  I' 
» 


\\    '|i 


14J 


IN     WIFFKKKM'    KKLATIONIS    AM)    OCCIJI  ATIONS. 


FiiniKTs  and  Meclianics'  Bank  n.  Champlain  Transportation  Co. 


jtcrsonally  iU'livcrcd  to  the  jUTSon  to  whom  (lircctcd,  or  will  <r\\-i'  notice 
to  him.  it  may  hv  (|iH'stioiu'(l  whether  the  eonsijijiior  must  not  provjilr 
foi'  the  fnrtiier  transmission  of  the  ijoods  or  money  after  the  boats,  ears, 
or  stages  arrive  at  tlieir  stoppina-plaee.  The  (piestion,  however,  is  not 
before  us,  and  is  not  (U'cided,  as  tiie  ease  does  not  recpiire  it. 

Tiie  evidence  offered  and   rejected  by  the  County  Court  sliould  have 
been  received,  and  their  judgment  is  consequently  reversed. 

,/i((l(jiiu'Ht  rci'i'rxcd. 

[Same  ca>t',  in  tlie  Siipicnu'  Conrt  of  Vermont,  Jannar.v  Term,  1S1(».*J 

Hon.  ('UAiMKs  K.  Williams,  C'hu'f  Justice. 
"      1SAV(     1'.  Rkdkikli),  j 

«'        Mll.O    I,.    nKNNKTT,      \  JtllhjfS. 

•'      l)\Niri.  Kllloiio,      ' 

Tn  aeoordance  witli  the  opinion,'  the  case  was  again  tried.  Evidence 
of  tiie  usage  of  eairiers  to  deliver  packages  of  bank-bills  intrusteil 
to  them  to  the  whartinger,  on  the  wharf,  was  given,  and  also  that 
tliis  usagi'  was  known  to  Dr.  IVck,  president  and  a  director  of  tlic 
bank.  The  defendants,  among  other  things,  recjuesti^d  the  court  to 
instruct  the  jury  that  if  they  found  that  the  usage  of  the  defendants 
above  mentioned  was  known  to  the  president  of  the  bank,  it  was.  in 
|)oint  of  fact,  notice  to  the  bank.  Hut  upon  this  point  the  eoint 
instructed  the  jury  that  notice  of  the  usage  claimed  might  be  expnss. 
or  might  l)e  implied  from  the  circumstances  of  the  case,  and  that  notice 
to  the  cashier  of  the  bank,  and  also  to  the  teller  in  this  particiilnr 
cast".  —  as  he  was  the  agent  to  deliver  the  package  of  bills  to  the  ca|it;iiii 
of  the  boat.  —  or  to  either  of  them,  was  a  notice  to  the  bank  itself;  but 
that  if  Dr.  IVck,  the  i)resident  of  the  bank,  had  notice  of  such  a  usage 
as  was  claimed  to  exist,  this  was  not  of  itself  notice  to  the  bank,  simply 
because  he  was  a  director  and  president  of  the  bank,  but  that  ^iieli 
evidence  was  competent  as  tending  to  prove  notice  to  the  bank;  ami 
that  if  from  this  fact,  and  from  the  long  continuance,  notoiiety,  luid 
uniformity  of  the  usage,  and  from  all  the  circumstances  attending  this 
case,  they  were  satisfied  that  the  board  of  directors,  or  a  majority  "f 
them,  had  knowledge  of  the  existence  of  sreh  usage,  this  was  sullicieiit 
to  charge  the  bank  with  notice,  and  that  it  was  immaterial  whethi'r  siieli 
dii'cctors  came  to  the  knowledge  of  such  usage  when  in  session  ainl 
acting  as  a  l>oard  of  directois,  or  upon  other  occasions  and  at  other 
times.     But  the  jury  were  told  that  if  Dr.  Peck  hud  had  the  agency  uf 

•  Ui'iiuiifii  IS  vt.  i:n. 

1  Antf,  y.  Uil!. 


■; 


U'lut' 

listrd 
tllMt 

i"  tlif 
irt  t(i 

(ItllltS 

[IS.  in 
court 
)ri'ss. 
lotit'c 
ficiiliir 
liptnin 
hill 
usMo;e 
iinply 

iiinl 

Mint 

>■  lliis 
ily  'if 
K'ii'iil. 

•  SlU'll 

In  iuiil 
othov 
H.y  uf 


CAKHIKR    AM)    (USTOMKK. 


143 


Illiistralivc  Cases. 


tlic  ;irt':iirs  of  the  IciiiU  coiniiiitUMl  to  liim  l»y  tlie  diiTctors,  and  had  been 
iiitnistcil  witli  the  transniission  of  tlic  money  of  the  bank  to  one  place 
anil  aiiotlicr,  as  (K'casion  sliould  rc<inire,  then  notice  to  him  would  of 
il-.flf  Ik'  notice  to  the  l»ank. 

riic  jury  returned  a  verdid  for  the  phiintiffs.     Exceptions  by  defend- 
ants. 

( '.  A(l<nns  and  D.  A.  SmuUe;/,  for  the  defendants.  —  It  was  not  material 
1(1  tlic  defence  to  show  that  tiie  phiintiffs  had  knowied<^e  of  the;  custom 
:iiiii  us;i<;e  tlnit  had  prevailcil  as  to  tiie  nianntM'of  deliveiiiifr  packaj^es  of 
liilN.  If  tiie  receipt  of  the  packa^i'  iniphed  an  obligation  to  dehver  at 
l'liitlsl»iM'!J!,li,  it  must  be.  in  the  absence  of  an  express  contract,  to  ilelive, 
;ici  Didiu'i'  to  general  custom  or  particular  usagi",  and  the  plaintiffs  were 
li  )inid  to  take  notice  of  such  custom  or  usage.'  But,  if  noti(;e  to  the 
!);ink  \v:is  necessary,  we  insist  that  the  notice  was  sullicient. 

('.  />.  /{iisfion  and  AxahcJ  J'crk,  for  the  plaintiffs.  — The  charge  of  the 
cdiut  below  as  to  what  would  constitute  notice  to  the  plaintiffs  of  the 
usage  c!aime(l  by  the  d«'f\'Uilants  to  «'xist,  was  corrt^ct.-'  The  plaintiffs 
must  have  had  knowledge  of  su(;h  usag(!  in  order  to  affect  them  i»y  it. 
Tills  was  nevi'r  doubted.  lOven  in  dihsoii  v.  Cali;ei\'-^  lUIn  v.  Mniio* 
and  tlil>  <'ase  when  here  before,  such  knowledge  was  the  only  ground 
npiiu  which  the  courts  held  the  usage  aflmissil)le.  It  is  only  on  the 
grnnnd  that  the  parties  knew  of  the  usage,  and  aie  therefore  supposed 
to  have  contractted  with  referent'c  to  it,  that  it  is  ever  adniissiiile;  and  it 
is  a  matter  of  fact  for  the  JiU'v  to  finil  whether,  in  any  given  case,  the 
parties  in  fact  contracted  with  refi'ience  to  it.  This  is  so  even  with 
rel'iTcnce  to  giMieral  usages.''  Hut  in  the  case  of  a  usage  of  the  party, 
it  was  ni'ver  pretenile(l  that  it  couhl  avail  anything  unless  it  was  known 
to  the  i)artv  to  be  charged  therewith.''     And  the  usage  must   also  be  to 


'  >'.  '•.  1(1  VI.  Wl\  story  on  I'.ail.,  §§  :c:.\,  TkU  ; 

Cnlc  (.|>i„'r   r.  {■, 1,  D  Car.  .V:  I'.  Itsil;  Mar- 

liiT  r.  Iliarc,  llCiiim.  H;  ('l•o^l>y  r.  I'ilcli, 
IJ  inmi.  Ilii;  Ku-lifoilli  r.  Mailllclil,  i;  Ka-t, 
'il''.  Kfiil  c.  CouKlitry,  ll.loliiis.  1117;  Kclliu- 
liii'sCasi',':  S,ilk.l4:t;  Nobli!  c.  KciiiiMwav ,  J 
l>"n_'.  ."ilii;  \',illiini'(!  (i.  Dcw.'ir,  1  ('aiii|i.  .'id.! ; 
oiiL'ni'  V.  .lcMiilii);s,  1  (;aiiiii.  .MO:  Coil  c. 
I  ii.iincrcjal  I  lis.  Co.,  7  Johns.  ;!s,-) ;  ||;il-rv  /■. 
I''|""ii,:'.  Day,  ;i(r,:  Scwall  r.  .\lli'ii,r,  Wcinl. 
'■  I :  >liiiy  on  l!;iil.  ."i.til-'iU  ;  (iibsoii  r.  CiilviT, 
17  Wiinl.  :;i).);   iivile   v.  Tront  Nav.  Co.,  ."> 


Sniilh,  1  Mail.  «*  SiM.  .Vi."! ;  Anp.  &  Ainus  on 
Corp.  '2I7-'2I'J;  llayward  v.  I'llgrini  Socit-ly, 
'Jl  l'l<'k. '^77;  Wa>liiiiglon  I'.aiik  c.  Lewis,  'il 
I'ick. '24  ;  CoiniiKa'i'ial  Hank  r.  ('unniiiKliani, 
'24  I'ick. '2711;  llou.saloiii(',,  etc.,  liank  v.  .Mar- 
tin, 1  .Mile.  ;;i)S;  hiillon  Itaiik  v.  ISonedii^t,  1 
Mall,  4!ri:  Kultdii  Munk  c.  New  York,  etc., 
Canal  Co.,  4  I'aij.'i',  Kitl;  llaydeu  f.  MiUdle^ex 
Turnpike  Co.,  in  .Masw.  40;!. 

'  17  Wenil.  ;;(),'•). 

<  10  Vl.  .'ir.. 

^  Knsliforlli  c.  Il;i(lll(;ld,  7  Ka.st,  ^^H ;  Wood 


'l'i'iii\lfep.;!,><;i;Ciitlc'y  ('.  Wiuti'innliani,  I'lake        i'.  Unkok,  2  Wend.  hy)\. 


N.   I'.   l.'iO:    Warden    ;..    Moiirillyan,    1    Ksp. 


Kank.O  Wheat.  <1!17;  Linroln, 


lialliire 


liiini'iii 


M. 


&    K.    UK); 


etc.,   naiil 


Alili, 


imk> 


!l   .Mas 


10 


KaL 


"liip 


Coinin.   mil,  iiii.) ; 


~t'  p  ifiisf.n  f.  Hart,  4  Minjc.  47ii. 


Alias   111-.  (  o.,  14   I'lck.  14,J;  Story  on   JSall. 


*l|j. 


llMler 


r.   l)ouell,  1   Taun 


Cross  V, 


i 


i  -i* 


m 


\\ 


■v. 


I  )\ 


3 


144 


IN    DIFFKRKNT    RELATIONS   AND    OCCUPATIONS. 


Farmers  and  Mt'diaiiios'  Bank  r.  Champlain  Transportation  Co. 


i'-U. 


so  (It'livcr  at  the  risk  of  the  consignee.'     A  ciUTier  whose  linliilily  is 
fixed  by  hiw  cumiot  chtiuge  tlie  law  by  hi-^  own  act.- 

Kellogg,  J.,  delivered  the  opinion  of  the  conrt. 

The  remaining  questions  in  the  case  arise  upon  the  instructions  given 
bv  the  court  to  the  jury.  The  defendants  were  common  carriers  \>y 
steamboat  upon  Lake  Champlain,  and  as  such  received  the  package  of 
money  for  the  loss  of  which  this  suit  is  brought.  The  case  involves  ;in 
inquiry  as  to  the  extent  of  the  duty  and  liability  of  common  carriers. 
And  it  has  been  urged  in  the  argument  that  the  defendants,  haxhin 
received  the  package  directed  to  the  cashier  of  the  Clinton  County 
Bank,  at  Plaltsburgh,  were  bound  to  deliver  it  to  the  consignee,  or  a; 
least  to  deliver  it  at  a  proper  |)lace  and  give  notice  thereof  to  tln' 
consignee,  and  that  the  usage  and  custom  of  tiie  defendants  to  deliver 
packages  of  money  to  the  wharlingcr  upon  the  wharf,  in  order  to  be 
available  to  the  defendants  by  way  of  defence,  must  have  been  known 
to  the  plaintiff;  and  the  court  lielow,  in  their  instructions  to  the  jury. 
seem  to  have  so  considered  the  law.  This,  we  thiuk,  was  an  incorrecl 
vii'W  of  the  law  as  applicable  to  the  case. 

In  the  absence  of  any  special  contract  between  the  parties  iu  relation 
to  the  subject,  the  duty  and  liability  of  the  defendants  tnust  be  detei- 
mined  by  the  law  api)lieable  to  carriers  of  this  description.  This  lialiility 
may  be  modified  by  contract,  by  the  general  usage  of  the  busines>.  or 
by  the  defenchuits'  particular  usage.  This  was  evidently  the  opinion  of 
this  court  wiien  the  case  at  bar  w.as  before  them  on  a  former  occasimi. 
Indeed,  the  case  was  then  opene<i  upon  the  ground  that  the  evidence 
of  custom  and  usage  offered  by  the  defendants  shoulil  have  iicen 
received.  It  is  true  that  upon  that  occasion  the  defendants  offered  to 
prove  that  the  custom  and  usage  upon  which  they  relied  were  known  to 
the  plaintiffs,  but  it  is  very  olnious  that  the  learned  judge  who  then 
delivered  the  opinion  of  the  court  did  not  consider  it  material  tinii  tin' 
usage  or  custom  should  be  known  to  the  plaintiffs.  He  says:  ■  I'he 
court,  however,  are  not  called  upon  to  decide  whether  this  knowledge  is 
of  any  importance.  If  the  evidence  had  been  admitted,  and  it  had 
falK'u  short  of  establishing  the  fact  of  personal  knowltedge  in  the  |)laiii- 
tiffs,  I  am  not  prepared  to  say  that  the  defendants  would  be  liable." 

lint,  whatever  may  have  heretofore  been  the  views  of  the  court  upon 
this  point,  a  majority  are  now  of  opinion  that  it  is  not  necessary  to 
prove  that  the  plaintiff  hatl  personal  knowle<lge  of  the  usage  in  onltT 


>  story  on  Bail.,  §643. 
«  AUoii  V.  SowaU,  2  Wciid   .127;  Dwi(i;ht  v. 
Brewster,  1  Pick.  SO;  St.  Juliii  i>.  Van  Sant- 


voonl,  ■.'.■)  Wuiul.  am,  Oslraudcr  o.  Hcovn, 
15  John^.  M. 


POWERS   OF    CORPORATIONS. 


145 


Illustrative  Cases, 


to  make  it  available  to  the  defendants.  The  case  of  Van  Santvoord  v. 
St.  John  ^  has  a  direct  bearing  ui)on  the  case  at  bar.  The  doctrine  of 
that  case  is,  in  substance,  this :  that  where  goods  are  delivered  to  a 
caiTier,  marked  for  a  particular  place,  without  any  directions  as  to  their 
transportation  and  delivery  except  such  as  may  be  inferred  from  the 
marks  themselves,  the  carrier  is  onlj*  bound  to  transport  and  deliver 
them  according  to  the  established  usage  of  the  liusinoss  in  vvhicii  lu'  is 
cugaged,  whether  the  consignor  knew  of  such  usage  or  not.  With  the 
reasoning  and  authority  of  that  case  we  are  well  satisfied.  It  is  founded 
in  good  sense  and  is  sustainable  upon  principle. 

The  case  at  bar  was  put  to  the  jury  by  the  County  Court  upon  the 
suijposition  that,  iu  order  to  enable  the  defendants  to  avail  themselves 
of  the  usage  upon  which  they  relied  as  a  defence,  the  jury  must  find 
that  the  plaintiffs  had  knowledge  of  such  usage.  This,  we  think,  was 
clearly  erroneous,  and  for  this  error  the  judgment  of  the  County  Court 
is  leversed. 

BKNTiKxr,  J.,  dissenting. 

Judgment  reversed. 


r 

m 

!t 

m 

\\ 

m 

'  •) 

'  • 

■\'  i 

iBl 

•■    :i 

■^  'H\M 

■,     li 

'I'l'-iWt 

!     r:r;rii 

1  ■  ■ . 

'  ^  '*'}  ii 

;  ( ' '  f 1  fl 

if  t 

}  i:.|j  n 

i; 

\M 

'  •  "^ii 

' 

i  ■    ■         1 

li 

: 

\ 

■ 

vlli 

13.  CORPORATrONS  — USAGES  CONTRARY  TO  CHARTER   POWKRS. 

BuLKLEY  V.  Derby  Fishing  Company.* 

In  the  Supreme  Court  of  Errors  of  Connecticut,  November,  1817. 

Hon.  Zkphamah  Swift,  Chief  Justice. 
"    John  Trumbull, 

WiLLLVM  EDMOND, 

Nathaniel  Smi'  ', 
.rKKKMiAH  Gates  Brainard, 
SiMKON  Baldwin, 
("alvin  Goddard, 
Stkpiikn  Titus  Hosmer, 
James  Gould, 


Justices. 


A  i-rii'iioration  may,  by  usngc  nixl  practice,  render  itself  liable  on  contracic  executed  in  a 
different  mode  from  that  authorized  in  its  charter. 

Action  on  a  policy  of  insurance  upon  a  vessel.  At  the  trial  the 
plaintiffs  offered  in  evidence  the  policy  declared  upon,  signed  "  Canfield 
Gillett,  president,"  and  countersigned  "Nathan  Wheeler,  assistant." 


'  C  Hill,  157. 


*  Ueiiorted  2  Conn.  •.'52;  7  Am.  Due.  271. 


10 


m 


|il 


IM^II 


1^. 


146 


IN     DIFFERKNT    RELATIONS    AND    OCCUPAIIONS. 


Bulkley  v.  Derby  Fishing  Company. 


i  ) 


The  defendants  objected  to  the  evidence  because  th«;  policy  (iid  ikm 
appear  to  be  conntersifrned  by  the  secretary,  as  piovulcd  by  Tue  .I't 
aiitliorizing  the  corapany  to  pursue  the  business  of  m.'itiin^  insiinnicc'.  i ,, 
obviate  this  objection  the  plaintiffs  offered  in  eviden<;«;  Ihv  coi  aspcini- 
ence  between  the  insured  and  secretary  of  the  company,  and  the  njii-iiv 
of  the  poli(!y  by  the  secretary,  to  prove  that  the  coni|)!>riy  lind  ity  ii> 
authorized  officers  ratified  the  policy;  they  also  offered  in  evidctii;!  tiic 
book  of  records  of  policies  of  insurance  kept  by  tin;  «joinpuiiy,  to  slmw 
tliat  it  had  not  been  the  practice  for  the  secretary  to  <;ount<Msigii  liic 
policies,  antl  that  many  policies  had  been  issued  coiiritcrKigruMl  bv  tlic 
assistant,  like  the  one  in  suit.  But,  the  defendants  objcctinjj;,  the  trpiut 
rejected  the  evirlonce  so  offered  by  the  plaintiffs  and  dircclivl  i!u  jmy 
to  (iud  a  verdict  for  the  defendants,  which  they  did.  Motion  ioy  n  in-w 
trial,  the  questions  Jipon  which  were  reserved  for  the  udvicc  of  ail  iIk; 
judges. 

Dagffftt  and  Staples^  for  the  plaintiffs,  cited  2  Baroti'y.  AhrlilijiufnL'' 
Ddiifojih  V.  Schohdrie  and  Daunefibunjh  Tarapik''.  lio'nL-  Spc^}.-  v. 
Lctdd,'-'  au'l  Haifilen  v.  Middlesex  Turnpike  Compani/  '' 

N.  Smith  and  Bristol,  for  the  defendants,  cited  Hi'tuL  v,  I'ruvi'u'ncp 
Insurance  Company^  and  Beattfj  v.  Marin*'  Insurance  (Joia/iiuu/.'^' 

Swift,  C.  J.  — In  the  acts  constituting  banks  and  otii«;r  rovnoiiitiniis. 
regulations  are  made  with  regard  to  the  mode  in  wlucli  they  wv  to 
transact  their  business  and  render  their  engagements  obligut'^  v-  To 
enable  them  to  enforce  the  engagements  made  for  tlieir  l)erietii.  ;ii( y 
must  act  within  tlie  scope  of  their  authority  and  confoiinaljly  tu  tlio 
directions  of  law. 

In  all  causes  where  banks  and  similar  corporations  fionfoim  to  tin  ii 
charter,  their  acts  are  binding  on  them.  So,  in  cases  wlieie  1ii<  v  (;  im  i 
conform  literally  to  tlu-ir  charter,  they  may  be  liable.  Supjiist  u  link- 
ing corporation  should  by  a  vote  agree  to  issue  bills  in  u,  ddfeicni  In  in 
or  with  different  signatures  from  those  prescribed,  tlioy  wouUi  by  ilicir 
own  act  be  rendered  liable  to  pay  them.  If  such  a  corporation,  without 
•I  vote,  should  introduce  a  usage  and  practice  in  the  truns:u;tioi!  of  tiicii 

i.r.iiesa  different  from  that  prescribed  by  law,  they  would  by  tin-  y.uw 

.son  be  rendered  liable;  for,  though  such  conduct  might  be  iinpioin'i' 
'■  -  elf,  yet  the  bank  cannot  take  advantage  of  their  own  wronii  to 
ii\i  ■'  their  contracts.  It  cannot  be  supposed  that,  in  goneiiii,  thus(  uiio 
dealt  with  them  had  knowledge  of  their  deviation  from  tlie  chailei  ugii- 


■J: 


'  (iwil.  (!(l.  IX 
■  12  Johns,  in. 
■■  1 1  Mass.  \H. 


<  10  Muss.  :!7!);  t>  Am    On     UK. 
«  2  Johns.  lOi);  3  ,\m\.  lui;  40:. 


l)V  1^'^'"' 


IWll 


POWKUiS    OF    COKPORATIONS. 


147 


Illnstralivi'  Cases. 


l.itions;  and  it  is  to  be  prcsniiKMl  tliiU  Uicy  int  iiccording  to  law.  If  it 
1h'  lulmittt'd  that  banks  may  thus  deviate  and  t  .cii  avoid  their  contracts, 
thev  would  be  enableii  to  practice  the  grossest  liauds  on  the  comtntinitv, 
esiK'cially  in  a  country  where  thi^n^  is  such  an  ininiiMist>  number  of  nion- 
eved  institutions  as  in  tliis,  and  wht'i-e  it  is  practicidih'  for  a  very  few  to 
know  the  extent  of  their  powers  and  reguhitions.  Banks,  like  individ- 
uals, must  be  liable  in  tlie  character  whi(;h  they  hold  out  to  the  world  ; 
nrul  whatever  may  be  the  fonns  of  their  obligations,  if  they  are  accoi'd- 
in<j:  to  their  charter,  their  corporate  votes,  or  their  known  usage  and 
practice,  they  ought  to  be  binding. 

A  corporate  act  is  not  recpiired  in  all  cases.     It  is  sutFieient  if  there 

he  a  usage  and  practice,  under  such  circumstances  as  may  be  presumed 

t(i  be  within  the  general  knowledge  and  by  the  consent  ol"  the  company. 

Niir  can  the  stockbobU-rs  or  members  of  the  company  he  subjected  to 

,niy  inconvenience  or  daipage.     If  any  oflicer  vested  with  certain  powers 

siiduld  in  any  instance  violate  them,  and  attempt  illegally  to  subject  the 

corporation  to  any  obligation,  su(!h  corporation  may,  instantly  on  the 

discovery,   disavow    the    act   and    pn^vent  a  repetition ;    and  then,  as 

there  will  be  neither  law  nor  usage  to  sanction  the   trans:i(;tion,  it  will 

not  he  binding.     But  where  the   corporation  will  suffer  such  practice  to 

cniitinue.  it  is  to  be  presumed  that  it  is  done  with  their  consent,  and  be 

made  obligatory  on  them.     In  the  present  case,  it  appears  to  mc  that 

tilt  evidence  offered  conduced  to  prove  that  it  was  the  usage  and  prac- 

liie  of  this  comi)any  to  underwrite  policies  of  insurance  and  draw  bills 

of  exchange  in  the  form  now  under  consideration,  and,   of  course,  that 

it  ought  to  have  l)een  admitted.     Whether  the  evidence  offered  would 

have  been  sufficient  to  have  satisfied  the  jury  of  the  fac^t,,  is  not  now  the 

(pu'stioH.     We    have  only  to  decide  on  the  relevancy  ;  the   jury  must 

ticcide  on  the  sufficiency  of  the  testimony. 

I  am  of  opinion  that  a  new  trial  ought  to  be  granted. 
TuiMBiLi,.  Bhainaki),  and  Goddakd,  JJ.,  concurred  in  the  opinion  of 
tiie  chief  justice. 

HosMKR.  J.,  also  advised  a  new  trial,  citing  Rex  v.  Bit/fj,'  in  ad<lition 
to  the  authorities  mentioned  f)y  (counsel  as  going  "  to  the  full  length  of 
deciding  that,  as  against  a  corporation,  an  authority  ti»  its  agent  differ- 
ent from  the  prescriptions  of  its  charter  might  be  implied." 

SMrrn.  .T.,  did  not  agree  with  the  chief  justice  on  the  ground  taken 
by  him,  hnt  accpiiesced  in  the  result  on  the  ground  that  the  se<>'retary 
liad,  in  his  correspondence  with  the  insured,  agreed  to  the  policy  in 
question,  and  had  afterwaids  registered  tht'  policy. 

•  8  v.  WiiiB.  41». 


■t^ 


nm 


I    n:'i 


-'n 


i'   ^ 


■.!    '...I 


*'      :.!j.-.?i- 


1 
I'* 


■  ■  I'  i 


ma 


i;  ■'  i 


: 


14.^ 


IN    DIFFEUKNT    RELATIONS    AND    OCCLI'ATIOKS. 


Harper  v.  City  Iii>r,iance  Coinpaiiy. 


Gould,  J.,  gave  an  opinion  favoring  a  new  trial,  holding  that,  as 
against  a  corporation,  the  contract  of  an  agent  ajipointed  beyond  tiie 
authority  of  its  charter  may  be  binding,  tliongli  it  may  be  otlierwisc 
where  the  corporation  itself  claims  a  right  under  such  contract,  and 
cited  Ex  parte  Mpymot '  as  a  case  containing  an  analogous  doctrine, 
where  a  clergyman,  prohiliited  by  statute^  from  trading,  was  nevertlio- 
less  held  liable  for  his  contracts  as  a  trader.  He  admitted  it  to  lio 
generally,  though  not  universally  true,  that  an  aggregate  corporation 
cannot  confer  express  authority  upon  an  agent  except  by  deed,  but  held 
that  an  appointment  might  well  l)e  implied  from  usual  and  frequent 
practice,  and  that  if  an  authority  by  deed  were  requisite,  it  would 
in  such  case  be  presumed  to  have  been  so  given  —  citing  Maj/or  of 
Kingston  upon  Hall  v.  Horner.^  He  thought,  also,  that  a  usage  of  a 
corporation  in  the  transaction  of  business  was  to  be  proved  by  the  acts 
of  its  otlicers  or  acknowledged  agents  in  the  management  of  its  ordi- 
nary concerns,  and  that,  unlike  the  case  of  a  presumption  of  title 
arising  from  long-continued  possession  and  enjoyment,  such  usage  need 
not  be  ancient. 

Edmon'd,  J.,  dissented, 

BALnvviN,  J.,  gave  no  opinion,  being  interested  in  the  funds  of  the 
corporation  defendant. 

Neiv  trial  to  be  granted. 


14.  FIRE    INSURANCE— CUSTOMARY  USE    OF   PROIIIRITED  ARTICLES. 

Harper  v.  City  Insurance  Company.* 

In  the  Supreme  Court  of  Xeiv   YorJi,  July,  1857. 
Hon.  John  Dtkr,  Chief  Justice. 

"      JOSKI'H    S.  BosWOKTH,    ] 
"      Mt'V.RAY   jIoI'KMAN, 
"      .fOHN   SLOSSON, 

"    Lkwis  B.  Woodruff, 


^  Justices. 


Ill  a  policy  of  Are  in.surnnce  upon  prinUng  and  book  inatevi:il.?  in  a  building,  privileged  for 
a  print ingolHce  and  bindery,  there  was  a  condition  exempting  the  insurer  from  liability 
for  any  loss  occasioned  by  cainpliene.  The  property  insured  was  destroyed  by  a  Dre 
ciiii.sed  by  a  workman  accidentally  dropping  a  lighted  paper  into  an  open  jar  of  cam- 
lihene,  which  was  kept  in  the  building  for  use  in  the  business.  In  an  action  on  tin' 
policy,  the  Jury  having  found  th;H  when  the  policy  was  effected  it  was  the  general  uud 


>  1  Atk.  lao. 


Kei)orted  1  P.osw.  5J0. 
"ii  Hon.  VIH. 


t'owp.  loa. 


FIKE    INSURANCE. 


i4y 


Illustrative  Cases. 


esta))1i>»lied  custom  among  printor-;  to  u.se  camphene  in  tin?  printiiif!;  of  book;*,  and  ih  t 
it<  11^0  was  not  only  adv.'int.igooii-i,  but  neccs'^ai-y :  ftf/^/,  that  the  exemption  exli-ii  Icil 
(inly  to  a  loss  occasioneil  by  the  u.-e  of  camphene  for  purpuries'  other  than  that  of 
printing. 

Tin:  questions  decided  in  this  action  arise  on  a  verdict  for  the  plain- 
tiffs, taken  subject  to  the  opinion  of  the  court  at  General  Term  on  the 
exceptions  taken  on  the  trial. 

Tlie  action  was  brought  to  recover  a  tot.al  loss  under  a  i)olicy  of  insur- 
ance apainst  fire,  issued  by  the  defendants,  and  dated  the  "d  of  March, 
IS.").;.  By  the  terms  of  tlte  polifv,  the  defendants  insured  tiie  plaintiffs 
aiTiiinst  loss  or  dainaLre  by  tire  to  the  am  )tint  of  $10,000  on  their  print- 
iiif: tiiid  liook  matfriiils,  stock,  paper,  stereotype  plates,  fixtures,  |)riiited 
books,  and  stcam-enirinc,  contained  in  certain  brick  buildiiifrs,  ptirticu- 
larly  described  in  the  policy,  with  the  privileir('  ••  for  a  printiiig-oflice, 
l)in(li'i'y,  books-tore,  and  steam-boiler  in  t!u'  yard." 

Tiie  defence  was  tliat  tlic  fiie  was  occasioned  by  camphene.  in  viola- 
tion of  till'  conditions  of  tlic  ji  ilicy  and  of  tiie  rights  of  the  defendants. 
The  ci;_rhtli  condition  of  the  policy,  to  which  the  defence  refers,  declares, 
iiiiMiifr  otiicr  tilings,  that  the  company  shall  not  be  liable  for  loss  or 
(liniKiire  by  lire  •'  occasioned  by  camphene  or  other  intlammable  li(piid." 
Tiic  cause  w:is  tried  l)eforc  .Mr.  Justice  Dtkr  and  a  jury,  in  January, 
\^'h).  The  defendants'  eoiuiscl  admitted  the  execution  and  <le!iverv  of 
tiif  policy,  and  of  the  preliminary  proofs,  the  lire,  the  iilaiatiffs'  owner- 
>li!li  of  the  i^Doils  iiistired.  their  destruction  by  the  lire,  and  that  tlie  loss 
ixccciled  the  amount  insured. 

It  was  proved  that  the  fire  w;is  caused  by  the  accidental  igintion  of 
a 'iuaiitity  of  c-unphcnc.  kept  in  the  piiiintiffs'  printing-o!l:ie  in  a  large 
aii'l  open  sheet-iron  pan.  in  which  the  rollers  used  for  liiu  printing 
wcie  cleaned.  A  nnmiier  of  wii!!esse>  were  examined  on  tlie  part  of 
t'h'  plaintiffs  to  jir;i\e  that  this  use  of  camii'iciie  was  general  am^iiig 
i'l'intei'-.  and  w.'is  not  merely  advantageous,  but.  for  tine  work,  ati*  liutely 
'ic>e><ary. 

When  the  plaintiffs  I'csted.  the  defenrlants'  coun^r-t  moveil  for  a  non- 
suit. >iib>taiitially  oii  the  grounds  stated  in   lii--  points  on  tiie  argument 
at  Keiieral  Tt-rm.     Th.e  motion  was  denied,  tiiid  the  coun-t  i  ex'-epted. 
Siveial  witnesses  Avere  examined  iov  the  defendants  to  repel  the  testi- 
iiMiiy  on  the  part  of  the  plaintiffs. 

When  the  testimony  was  closed  and  the  counsel  had  suiunied  up.  tiie 
JH'lqfc  subiiiitte(l  to  the  jury  the  following  questions:  — 

/•"o'>Y.  Was  there  a  general  and  estaltlished  usage  amoicj'  printers  in 
the  i!~e  of  ■ampliene  for  tine  work  in  the  printing  of  books,  at  the  time  this 
iM'li  \  was  eliccleuj' 


)i 


i 


f 


;  1 


J 

i 


t, 


■.  ■  If 

■      L 


I J  • ' 


150 


IN    DIFFEKKNT    KKLATIONS    ANU    OCCUPATIONS. 


Harper  v.  City  Iiisurauuu  Company. 


Second.  Was  the  use  of  eamplione  iicoiissary  for  fine  work  in  tin- 
printino;  of  books? 

Third.  If  not  nduossary,  was  its  use  more  advantageous  tlinn  th:it  of 
any  other  article  for  the  purposes  for  which  it  is  proved  to  liave  Ix-cn 
used  ? 

And  he  then  charged  the  jury  that  if  they  answered  eitlier  of  flic 
questions  in  the  affirmative,  they  sliould  find  a  verdict  for  the  plaintiffs 
for  the  amount  of  the  policy.  The  counsel  for  the  defendants  excepted 
to  the  charge. 

The  jury  answered  all  the  above  questions  in  the  affirmative,  and 
rendered  a  verdict  for  plaintiffs  for  $11,278.70. 

William,  M.  Etnirts,  in  moving  for  Judgment  for  the  plaintiffs  upon 
the  verdict,  made  and  argued  the  following  points:  1.  I'nder  the  findiii>r 
of  the  jury  as  to  the  necessary  use  of  campheue  in  the  printing  of  books 
and  the  general  established  usage  of  the  trade  so  to  employ  that  article, 
it  is  imj)ossible  to  contend  that  its  use  by  the  pUnntiffs,  as  proved,  was 
not  within  the  special  descrii)tion  of  tlie  subject  insured  and  the  specinl 
privilege  accorded  by  the  policy.  2.  It  is  equally  clear  that  the  disclo- 
sure of  the  subject  and  object  of  tiie  insurance,  as  recited  in  the  policy, 
repels  any  suggestion  of  concealment  of  tlie  eh-ment  of  risk  supposed  to 
arise  from  this  use  of  camphene  in  printing.  This  notice  of  the  subject 
of  insurance,  and  of  the  purposes  for  whi(rli  the  premises  in  which  it  was 
situated  were  privileged,  either  gave  the  company  actual  information  of  nil 
the  elements  of  risk  involved,  or  [)ut  them  upon  inquiry.  .'».  If,  then,  tlii'. 
general  conditions  of  the  policy  be  construed  as  a  warranty  by  the  assured 
against  the  use  of  campliene,  the  particular  use  within  the  description  and 
the  privilege  of  the  subjec^t  insured  is  allowed  by  Mii^  special  terms  of  tlic 
contract.'  4.  The  only  remaining  question  is  whether,  thougii  the  use 
of  camphene  in  printing  be  allowed  i)y  the  policy,  the  manner  of  the 
loss  exempts  th"^-  defemhuits  from  liability  as  not  being  a  risk  insured 
against.  5.  The  property  insured  was  destroyed  by  tire;  fire  was  the 
proximate  cause  and  the  exclusive  agent  of  its  destruction;  destruction 
by  fire  was  the  risk  insured  against.  (?.  The  originsiting  and  responsilih^ 
cause  to  which  the  destruction  by  fire  is  traceable  is  the  careless,  yet 
purely  casual  communication  of  an  ignited  material  to  camphene.  :is  in 
use  within  the  privilege  of  the  policy,  such  canqjliene  being  a  part  of  tin- 
subject  insured  against  fire.  The  ignition  was  independent  of  the  csui'- 
phene  in  its  origin;  that  its  spread  on  the  subjects  insured  was  thronuli 
the  inflammability  of  camphene,  which  formed  an  incorporate  part  of  the 
subjects  insured,  does  not  make  the  camphene  the  (x^casiou  of  the  loss. 

'  Wall  V.  Ilowanl  Ins.  Oo.,  11  fSarl).  :!^!;  Bryant  v.  Poughkecpsie  [ii.s.  Co.,  il  limb.  I'll. 


ii'lUE    IM8UKANCE. 


l.»l 


Illiistrutive  Cases. 


(■  i;,i  ,ii.;ui^  c.iiii,  within  the  mejiniiig  of  the  policy,  be  regarded  as  occa- 
si.iiiiii'j;  a  loHs  l>y  tire  only  when  it  oeeasions  tiie  original  ignition  by  its 
iiitluimuaUle  nature,  or,  at  tiie  furtliest,  wlion  its  nse  becomes  the  means 
win  rcUv  the  |>r()|ter  and  ordinary  use  of  light  and  Hre  in  the  premises  is 
iiitliiiiu'd  into  !i  destructive  combustiini  occasioning  the  loss.  Camphene 
cannot  !»e  regarded  as  occasi(jning  a  l(»ss  by  fire  merely  because  the  igni- 
tiuii  reaching  it  I)ec:)me3  less  controllable  than  before;  this  would  be 
('([uivaleiit  to  a  rejuidiation  of  loss  where  cam[)hene  was  used,  although 
its  use  was  licensed  and  it  was  itself  insured.  7.  The  true  construction 
i)f  Uii-  clause  in  regard  to  loss  occasioned  by  camphene  in  connection 
with  the  special  subject  insured,  which  includes  camphene,  and  tlie 
;s[)tMi;tl  privilege  accorded,  which  involves  the  use  of  camphene,  is  that 
a  loss  occasioned  by  camphene  in  a  relation  or  use  outside  of  the 
description  and  privilege  is  excluded  from  the  risks  assumed. 

A.  K.  Iladle.y,  for  the  defendants,  made  and  argued  the  following 
points:  1.  'J'iie  fire  and  consecpient  loss  were  occasioned  by  camphene, 
and,  tht'ietore,  within  the  express  exception  contained  in  the  eighth 
condition  annexed  to  and  forming  part  of  the  policy.'  It  is  lawful  and 
proper  in  itself,  -Mid  binding  and  conclusive  upon  the  plaintiffs  ;  and  this, 
aotwit'istaiiding  tlie  defendants  may  have  known  and  assented  to  the 
usi'  of  camphene.'  It  was  clearly  competent  for  the  defendants  to 
auliiorize  the  use  of  camphene,  and  yet  screen  themselves  from  any 
liatiility  on  account  of  loss  occassioned  by  it.  They  also  expressly 
auihorized  the  use  of  a  ••steam-boiler  in  the  yard,"  and  yet  provided 
that  "'this  company  will  not  be  liable  for  any  loss,  by  fire  or  otherwise, 
occasioned  by  the  (explosion  of  a  steam-boiler;  "  and  this  last  condition 
tlu'  Court  of  A|)peaLs,  as  well  as  this  court,  has  already  held  to  be  valid 
ami  conclusive  upon  the  |>laintiffs  in  the  case  of  St.  John  v.  American 
Mnt'iixt  Fire  and  Marine  Infturance  fjompan/f.'-^  '2.  All  testimony  tend- 
ing to  show  the  usage  of  printers  and  the  necessity  or  utility  of  cam- 
|)lu'ne  was  incompetent,  and  improperly  received.  First,  the  contract 
iK'ing  free  from  ambiguity,  no  such  usage,  necessity,  or  utility  could 
liavt'  any  effect  to  (ihange  its  purport  or  effect.'*  Second,  the  usage  of 
the  trade  in  this  |)articular  was  not  brought  home  to  the  knowledge  of 
till-  defi'udants ;  neither  was  it  so  general,  so  well  settled,  so  uniformly 
ach'd  on,  or  of  so  long  continuance,  as  to  raise  any  presum!)tion  of  such 
kii  ivvledge,  or  that  the  contract  was  made  with  reference  to  it.-"' 


■leiinings  v.  (Miuiiuiigo  Oouiity  Ins.  Co., 
i  Diiiii),  7iJ;  MurJiick  v.  Chenuiigo  (Jouiity 
111",  t.'i).,  'i  N.  Y.2'20. 

St.  John  r.  AinRrlcan  Mutual  Kiru  & 
Marine  Ins.  Oo.,  1  Oiior,  ;{71;  II  N.  V.  .iKI. 


'  Supra. 

*  Cow.  &  Hlir«  Notes,  1396,  I*>7,  UIB,  HHi. 
III.  14ia,  1417. 


2JL.  t.t 


/  m 


m 


•iif 

m 


m 


VI 


II 


-'i 


m 


,1  ■ 


I'll  I 


llr. 


riiSi: 


m^ 


1.02 


IN    DIFFKRKNT    RELATIONS    AND    OCCUPATIONS. 


Hiirju'r  V.  City  Insuriiiicc  Company. 


Hv  ill'  (' Mirt,  Sr.ossoN,  J. — It  is  ditflciilt  to  distin^iiisli  this  case 
from  tiiat  of  St.  John  v.  Aiiwrlcan  Mutual  Fire  nnd  Marine  Ltsiiraiiri> 
Com/xinif,^  and  unless  the  privilege  contained  in  the  policy,  taken  in 
connection  with  the  lEjeneial  nature  of  the  subject  insured, — to  wit.  a 
printing  and  hook  establishment,  —  creates  a  distinction  between  the 
two,  that  case  must  be  decisive  of  this. 

The  defence  mainly  relied  upon  is  that  the  lire  was  ''occasioned  l>y 
camphcnc,"  a  ri>k  from  which,  by  tin-  eighth  printed  condition  of  tiie 
policy,  the  company  is  expressly  exempted. 

The  conditions  of  the  policy  are,  by  express  refc  jnce  to  them  in  the 
body  of  the  instrument,  made  }>art  of  the  contract,  and  it  is  provideil  in 
teiin.'^  that  they  "  are  to  be  used  and  resorted  to  in  order  to  explain  tlic 
rights  and  obligations  of  the  ijarties  thereto,  in  all  cases  not  therein 
otherwise  spi'(;ially  provided  for." 

Tile  cnnii»hciie  was  kept  in  open  sheet-iron  jars  or  pans  in  two  room-, 
one  on  the  si-cond  and  one  on  tlu'  thir  I  floors,  cxpivssly  fitted  up  ami 
arranged,  and  supposed  to  lie  sufliciently  so  to  prevent  any  dangtirons 
conununication  between  them  and  other  parts  of  the  building,  in  i  a-e 
of  accident  in  tiie  use  of  the  article.  These  jars  or  pans  were  sta- 
tionary. Tiicy  were  nearly  foiu'  i'l'ct  long,  and  the  fluid  was  put  into 
them  to  t!ie  deptii  of  fi'om  two  to  two  and  a  half  feet ;  they  were  iisoil 
for  dipping  the  rollers  used  in  printing,  for  the  purpose  of  cleaning 
tlicni.  The  fire  was  communicated  to  the  camplieue  by  one  of  the 
workmen  accidi'ntally  or  carelessly  dropping  or  throwing  a  lighted  pa|H  r 
or  match  into  one  of  the  open  jars.  The  fire  spread  with  immciliate 
and  fatal  rapidity,  and  the  whole  building,  with  almost  its  entire  con- 
tents, was  destroyed,  producing  an  immense  loss.  The  insurance  was 
for  SKKOno  on  the  plaintiffs'  ''printing  and  book  materials,  stock. 
paper.  stercoty|)e  plates,  fixtures,  printed  books,  and  stcam-engiiH'  ami 
machinery  contained  in  the  premises  in  Cliff  and  Pearl  Streets."  'Vlw 
privilege  was  thus  expressed:  ''  Privilege  for  a  printing-oflice,  biiiilciy. 
ami  book-store,  and  steain-boih'r  in  the  yard." 

The  judge  at  the  trial  admit  ted.  under  oi)jection,  evidence  of  a  ii-aue 
among  printers  to  use  canipheiu"  for  line  work  in  the  printing  of  Ixxiks. 
and  of  the  necessity  and  advantage  of  its  use. 

It  ap|)ears  from  the  evidence  that  the  article  was  used  by  printers  in 
cleaning  rollers,  wood-cuts,  metal  plates,  and  type-metal  where  there  aiv 
engravings.  .Most  of  the  witnesses  s|H'ak  of  it  as  a  necessaiy  article  in 
what  is  called  line  work.  Som  •  of  the  witnesses  speak  of  its  having  lu  eii 
in  use  five  years;  some,  sixorsevi-n;  some,  ciglitor  ten;  and  one,  thai  it 

'  1  Duer,  :!71  (iilUiined  11  X.  Y.  516). 


FIRE    INSUKAXCE. 


153 


Illu.-tnitive  Cust-s. 


Ii;i>   \h\'\i  ill  use  fourteen   yo:iis.      One   witness  suy^   its   use   has   Ikhmi 

iroMeiiil  In    all  print inij-otlices    tor  nine  or  ten  years;  :inotiiei'  says  he 

knows  of  no  printers  \v!io  do  line    work   wiio  do  not  use   campliene ; 

another,  however,  says  that   he  cainiot  say  that   a  majority  of  printers 

n^c  it.  aM<l  thinks  not;  another,  that  it  is  ifenerally  used  hy  those  who 

■In  tine  work.     The  phiintiffs  themselves  had  used  it  for  fouiloen  years. 

The  importance  of  estaltlishinu'  a  usaLjein  the  use  of  eainphene  arises 

1  ot  1  from  the  absence  of  any  evidence  to  show  that  when  the  plaintiffs 

a  ip!  e  1  for  the  insurance  they  ma  le  known  to  the  ilefeiKhuits  that   tlu^ 

article  was  used  on  the  premises,  as  they  were  hound  to  have  <loue.  it 

iiiiui;-  an  article    materially  affectinu'  the  risk,   and  the  omission  of  ;dl 

ret'eience  to  it  by  name  in  the  privilege,  which,  it  is  contende<l,  includes 

;t>  use. 

The  judge  submitted  three  distinct  (pie^tions  to  the  jiuy:  — 

First.   Was  there  a  u'eui-ral  and  eslabli>lie(l   usaiic  anion<r  printers  in 

tlie  use  of  eamphene  for  line  work  in  the  printinir  of  books  at  the  timi' 

the  pulii'v  was  efft'<'ted? 

Si'.'oiid.  Was  eamphene  necessary  for  line  work    in  the  printinc^   of 

honks? 

Tiiird.  If  not  necessary,  was  its  use  mf>re  advantageous  than  that  of 
any  otiier  article  for  the  pui'poses  for  which  it  is  prove<l  t)  have  lici-n 
n-ed? 

And  the  jury  were  instructed  that  if  tliey  found  either  in  the  allirma- 
tivc.  they  should  find  a  verdict  for  the  plaintiffs  foi-  the  auKUint  of  the 
liiiliiy.  'Pile  jury  answered  each  (juestion  in  the  alliniKitivc  and  a  ver- 
dict was  taken  for  the  phiintiffs,  subject  to  the  opinion  of  ihc  court  at 
(ieneial  Term. 

The  question  of  hoAV  long  the  usage,  if  the  jury  should  lind  it  io 
exist.  Iiad  prevailed,  was  not  snlnnitted  to  them.  Tli"V  have  foiuid  that 
the  ;i-agc  prevailed,  and  that  the  use  of  the  article  wa>  Imtii  necessary 
and  iiKiiv  advantageous  than  that  of  any  other  for  the  puriioefor  which 
it  \v;n  used  in  printing.  As  the  jury  foiiml  all  the  (|Uestion--  in  the 
aHiiiuiitive.  no  question  can  arise  as  to  which  of  the  three  foiined  liie 
ii;i>is  of  the  verdict.  It  rests  u|)onall:  and  if  the  charge  of  the  judge 
ciiiit;'iiic(l  a  correct  exposition  of  the  law  of  the  contract  between  tlie 
paitic.s,  the  verdict  must  stand,  unless  thi'  omission  t't  tind  how  longthe 
cu-ti>ni  to  use  eamphene  had  jjrcvailed  shall  be  consitU'red  fatal,  or 
uiilcNS  evidence  of  usage  was  inadmissible  at  all. 

1  am  of  opinion,  considering  the  generality  of  the  language  employed 
ii  tlie  clause  containing  the  privilege,  that  the  evidence  was  |»roperly 
admittLMl,  audi  think  the  lindiuii'  that  there  was  a  general  and  established 


TfH 

V 

''  lUfl 

/,li 

'     1  .    \  a 

''f 

1    'i 
'•1 

\i' 

■^'i'^J 


)lp 


^"3 ..  aI 


-;   -it 

41 


'Is  ■•'J 


m 


i^^W 


fl ' ' 


I!  li 


ir)t 


IN    DIFFERENT    RELATIONS    AND   OCCUPATIONS. 


Harper  v.  Cily  Insurance  Company. 


iiHiige  amung  printers  to  use  camphene,  especially  under  the  evidence 
wliioh  shows  it  to  have  existed  sevenil  years  at  the  least,  quite  eiiouoli, 
witiiout  a  special  finding  as  to  the  length  of  time  it  has  prevaile(i,  Id 
charge  the  defendants  vvitl;  knowledge  of  its  existence. 

The  judge  charged,  "  that,  under  the  description  of  the  subjiu'ts 
ini  ured  and  the  privilege  granted  therewith,  the  plaintiffs  aio  entitled 
to  recover,  although  the  accidental  fire  msLy  have  been  communicated  lo 
or  propagated  through  the  camphene  used  and  employed  by  the  plain- 
tiffs in  their  business,  within  the  description  and  privilege  of  the  policy, 
if  the  jury  should  be  of  opinion  that  camphene  is  an  article  of  usual, 
necessary,  or  advantageous  use  in  such,  the  business  of  the  plain- 
tiffs, within  the  description  and  privilege  of  the  policy." 

It  is  important  here  to  determine  what  is  meant  b}'  the  words  ''  occa.- 
sionedby  cami)hene,"  as  used  in  the  eiglith  condition;  for  if  th(;y  arc 
to  be  construed  in  the  sense  of  originating  or  causing  of  itself  a  tire,  tlic 
condition  becomes  practically  a  dead  letter. 

The  liquid  itself  can  never  physically  originate  fire  —  it  is  not  s(!lf- 
combustible;  it  can  only  occasion  fire  by  being  the  iinmediate  niedinin 
of  its  (jommunication  to  other  subjects.  It  is  in  this  sense,  therefore, 
that  the  words  are  to  be  understood  ;  and,  thus  read,  the  plain  meaning  of 
the  condition  is,  that  the  company  will  not  be  responsible  for  a  loss  l)y 
fire  which  shall  have  been  occasioned  by  means  of  camphene  tis  a 
nuuliinn  of  its  counnunication,  and  which  would  not  have  happened  l)iit 
for  the  presence  of  that  article  on  the  j)remises.  The  language  of  tin* 
charge,  in  which  the  fire  is  spoken  of  as  ''communicated  to  or  pio- 
piigated  through  the  c.-imphene,"  therefore,  correctly  defines  the  mean- 
ing of  the  words  in  the  condition,  "  occasioned  by." 

The  question  then  is  whether,  under  the  priWlege  containeil  in  tlio 
policy,  —  "privilege  for  a  printing-otfice,  bindery,  and  book-store,"  — 
taken  in  •  )nnection  with  the  subject  insured,  —  "  printing  and  book  maU-- 
rials,  stOv.k,  paper,  stereotype-plates,  fixtures,  printed  books,  and  slciuii- 
engines  and  machinery  contained  in,  etc.," — the  defendants,  with 
Icnowleds^ft  at  the  time  of  effecting  the  insurance  that  camphene  w;ih 
UHcd  in  the  process  of  printing,  agreed  to  assume  the  risk  of  a  tin' 
"  o(!casioned  by  cami)hene,"  against  which  they  have  expressly  stipu- 
lated in  the  eighth  condition  of  the  policy  ;  in  other  words,  whether  the 
l»rivilege  does  not  sujjersede  the  condition. 

riiere  are  two  aspects  in  which  this  question  is  to  be  considered,  iiiul 
in  which  it  was  argued,  both  depending  upon  the  proper  conatructiuu  of 
the  terms  of  the  policy. 

'I'he  first  is  that  contended  for  by  the  plaintiffs,  to  wit:   that  by  |nr- 


FIRE    INSURANCE. 


1  :>:> 


Illustrative  Cases. 


iiiittinj?  Mm  ()usiuoss  of  a  "  printiiig-ollicts "  to  be  carried  on  upon  the 
|irt!inis(\H,  for  tlie  |>ur|)08es  of  whicli  the  use  of  eainphene  w;'s  necessary, 
:itid  :idv;iiit:i<ife(»us,  and  known  to  the  defendants  to  be  usual  and  cus- 
1,(Miiary,  they  thereby,  and  by  force  of  sucli  privile<2fe  or  permission, 
iw.suincil,  and  must  he  held  in  law  to  have  assumed,  the  risk  of  a  loss  by 
tire  through  the  medium  of  that  article,  notwithstanding  tliey  are  by  the 
i'i<fhtfi  condition  of  tiie  policy  in  terms  exempted  from  tliat  risk. 

The  other  is  that  contended  for  by  the  (U'fendants,  to  wit :  that  in 
iriving  th(^  piivilejj;e  they  have  assented  to  the  use  of  campliene  to  this 
extent  and  in  this  sense  only,  to  wit:  that  its  use  on  the  premise's  in  the 
Imsiiiess  of  printing,  thouj^h  in  itself  an  article  of  extra-liazardous 
character,  Hliall  not,  unu'.-r  other  piovisions  of  the  policy,  avoid  the 
contract,  hut  tliat  they  do  not  thereby  intend,  nor  upon  a  proper  con- 
struction of  the  contract  can  be  lield  to  have  intended,  to  waive  the 
lieiiefit  of  the  condition  whicli  evempts  them  from  a  loss  occasioned 
throiiijhits  medium.  In  other  words,  that  while  they  permit  its  use,  and 
agree  to  vv;i.ive  any  forfeiture  I)}'  reason  of  such  use,  they  uevertlicless 
will  not  b.'  responsible  for  a  loss  occasioned  by  such  use. 

Tlie  (picstion  is  one  by  no  means  of  easy  solution,  nor  is  it  perhaps 
iroiiiir  too  far  to  sny  that  its  decision  either  way  will  still  leave  some 
iinlKirnisHment  and  doubt  on  the  mind.  There  are  considerations  which 
iniiki'  the  views  entertained  by  tlie  defendants  extremely  cogent  and 
(lilliciilt  to  answer;  while,  on  the  other  hand,  the  construction  given  to 
till'  loiilraot  by  tlie  plaintiffs  is,  to  say  the  least,  of  equal  plausihility 
aini  fonte. 

It  must  be  borne  in  mind  that  the  privilege  is  contained  in  a  special 
written  clause,  while  the  exemption  is  in  one  of  the  usual  printed  con- 
ditions. 

riiiit  civery  stipulation  in  a  contract  should  be  so  construed  as  to  give 
it  Some  |)r!ictical  operation,  is  a  conceded  rule;  and  it  is  equally  true 
tiiit  all  the  stipulations  in  the  contract  must  be  so  construed  as  to  har- 
iii"ni/.e,  if  possible. 

rite  olMc.e  of  a  privilege  in  a  policy  is  to  authorize  the  use  of  an 
article  or  an  occupation  on  the  premises  which  but  for  suc^h  license 
Wdiild  avoid  the  contract.  As  in  t!ie  ])resent  case,  the  business  of  book- 
printing  is  one  of  tl'"  trades  included  in  the  memorandum  of  special 
rates,  and  to  carry  it.  on  upon  the  premises  without  a  special  authority 
wiiiiM  li;i.vc  avoided  the  policy. 

I.i  the  licenst!  or  privilege  of  carrying  on  a  particular  business  or 
traili' on  the  premises  —  as,  in  this  instance,  that  of  a  printing-otBce  — 
luiist  [iroperly  be  included  t.'!   that    is    necessary,  essential,  and    cus- 


•11 


'r'i      <  ' 


i        .1 


.  -i". 


\M 


i 


mPf  ' 


15(5 


IN    DirFKIIKXT    KELATIONS    AND    OCCUPATIONS. 


Harper  v.  City  Insurance  Company. 


tomary  in  tho  <^on(Iiut  of  such  business.  If  this  be  so.  then  the  use  of 
caiiiplu'iie  in  printiuir  is  by  necessary  implication  allowed  in  the  priviKut 
to  i)rint ;  but,  conce<ling  this,  the  fpiestion  renuiins.  Shall  the  company 
be  bound  for  a  loss  by  fire  occasioned  V»y  that  article? 

The  defendants  contend  that  by  holding  tiiem  exempt  from  liability 
for  loss  while  the  privilege  to  use  is  conceded,  both  provisions  or  stipu- 
lations are  fully  answered,  and  each  party  obtains  what  he  stipulaii'l 
for:  tlie  plaintiffs,  a  right  to  use  an  article  which  without  tlie  privi- 
lege would  have  avoided  their  contract  altogether;  while  the  dcrcml- 
ants.  thus  waivins:  the  use  as  a  ground  of  forfeiture,  nevertiicUss  aie 
relieved  from  liability  in  respect  to  that  particular  article  —  thus  siistaiiiinL' 
in  full  force  the  terms  and  stipulations  of  tlie  eighth  condition. 

On  the  other  hand,  the  plaintiffs  say  that  this  construction  is  to  make 
the  privilege  in  a  measure  nugatory,  and  that  by  giving  the  privilege,  the 
company,  upon  every  princijjle  of  sound  sense  and  fair  interprelatinn, 
assume  tiic  wliole  risk  incident  to  the  customary  and  proper  use  of  Xhv 
article;  and  it  is  contended  that  this  construction  <l(  es  not  altogotlur 
dispense  witli  the  eighth  condition,  whose  refiuiremeiits.  it  is  said,  are 
met  by  confining  the  exemption  contained  therein  to  ''  a  loss  occasioned 
b}''  camphene  in  a  relation  or  use  outside  of  the  privilege." 

This  latter  view  of  the  question,  it  seems  to  us.  ai'tei'  a  c!u-efnl  con- 
sideration of  the  whole  sul),iect.  is  the  true  one.  If  the  privilege  i>  to 
be  construed  by  the  usage  at  all,  and  the  usage  lie  a  reasonable  nse.  it 
is  to  the  extent  of  sueii  usage  a  limitation  of,  or  exception  from  t!ie 
stipulations  of  the  condition.  So.  also,  if  the  jtrivilege  is  to  lie  e<in- 
strued  in  reference  to  avIkiI  are  the  necessary  means  of  seciiriii'i  it- 
enjoyinent.  as  it  unquesti<uiahly  nuist  be.  then  it  embraces  all  tiic  incaiif 
necessary  to  tlu'  busiiu'ss  of  printing,  and  to  the  full  extent  of  sneli 
necessity  is  a  limitation  of,  or  exce[)tion  froin  the  terms  of  the  coiidiiinii. 
The  condition  is  not,  however,  left  a  dead  letter  in  the  contract,  for  lie 
moment  the  point  of  usage?  or  nct'cssity  is  passed  it  becomes  as  ojierative 
as  ever.  It  therefore  stands  for  every  purpose  not  specially  excciitc'l 
bv  the  privilege.  This  construction  seems  to  us  both  reasoiiahlc  aii'l 
just,  and  tho  only  one  by  which  effectual  justice  will  be  secured. 

It  is  contended  by  the  defendants  that,  however  the  use  of  caiiiplieiir 
in  small  (puuitities  nniy  be  fairly  held  to  be  within  the  ])rivilege.  it-  ii-^i 
to  the  extent  sh.iwn  in  tln'  present  case  cannot  reasonably  be  licM  t" 
have  been  within  the  contemplation  of  the  parties  at  tlie  time  f)f  iiu'lei- 
writiiig  this  policy,  and  that  therefore  the  exemption  covciKintid  in 
the  condition  remains  in  full  force. 

This  was  made  a  point  on  the  moii;i:i  for  a  nonsuit,  and  it  was  enii- 
tended  that  such  a  use  of  the  article  was  •'  not  in  accordance  with  any 


FIRE    INSUUAXCK 


157 


Illustrative  Cases. 


known  cnstom  or  usutro.  with  notico  of  wliicli  the  di'fendants  were  pre- 
siiinod  to  be  coifniztint  or  eliargoablo,  and  was  a  fact  and  feature  in  the 
ri:-k  which  increased  its  hazard."  Tiiis  mode  of  using  camphene  is  not, 
according  to  the  evidence,  confined  to  tlie  phiintiffs.  Willituns,  a  printer 
ill  tlie  Methodist  Rook  Concern,  says  they  use  it  in  that  establislinicnt  as 
t lie  plaintiffs  do,  to  wit:  "  immerge  the  plates  and  rollers  in  tubs  con- 
taining the  article:"  and  Brown,  the  superintendent  of  the  printing 
(lipartment  in  the  American  Tract  Society,  says  that  rollers  are  used  in 
all  printing-offices. 

It  is  a  fair  inference,  from  this  evidence,  that  this  mode  of  using  cam- 
phone  is  a  part  of  the  general  usage  or  custom  ;  and  if  so,  it  was  equally 
witliin  the  knowledge  of  the  defend:uits  as  the  fact  of  its  use  at  all.  It, 
therefore,  was  unnecessary  to  have  made  a  special  explanation  in  respect 
to  it  on  api)lying  for  the  insurance;  and  if  the  use  of  the  article  at  all 
was  within  the  privilege  by  reason  of  the  usage,  as  we  have  shown  it 
was.  its  usi'  in  this  particular  mode  was  equally  so. 

Nor  does  it  follow  that  the  privilege,  if  extended  thus  far,  is  neces- 
sarily unlimited  :  any  abuse  of  it  would  clearl}'^  defeat  a  recovery.  Like 
all  other  stipulations  in  a  contract,  it  must  not  only  be  reasonably  con- 
strueil,  liut  acted  upon  in  good  faith.  The  evidence  does  not  show  that 
more  of  the  article  was  used  in  the  present  instance  than  was  absolutely 
necessary  for  the  purpose  of  the  printing  authorized  by  the  privilege ; 
and  it  would  be  hard  to  say,  if  not  difficult  to  comprehend,  that  though 
the  use  of  it  in  a  smaller  quantity  might  have  been  embraced  within  the 
l)rivili'ge.  its  use  in  quantities  adequate  to  the  necessities  of  so  large  an 
establishment  as  the  plaintiffs'  was  not  so  t'lnbraced.  The  answer  would 
be  obvious  :  tiiat  the  m.agnitude  of  the  risks  assumed  was  in  proportion  to 
the  magnitude  of  the  subject  the  defendants  had  undertaken  to  insure. 

Tiu're  nuist  be  judgment  for  the  plaintiffs  for  the  amount  of   the 
verdict,  and  interest. 

Judgment  for  the  plaintiffs. 

jsaine  case,  on   appeal,    in  tlie  Court  of  Appeals  of  New  Y'ork,   DLceiiiljer, 

ISflO.*] 

Hon.  Gf.ouok  F.  Comstock,  Chh'f  Judge, 

"         lIlKAM    DKNIO, 

•'      Henky  E.  Daviks, 
"      Samtkl  L.  Ski.dkn, 

Thomas  W.  Ci.eiuvK,       Judges, 

William  B.  Wuioht, 

William  J.  Racox, 

IIi;m!V  Wlllks. 


t. 


*  Itepoitert  22  N.  V.  4*1. 


;  M-4 


'i 
t 


;M 


5   •  i*<3 


if 


II 


IftH 


IN     DIFFEKKNT    KELATIONS    AND    OCCUPATIONK. 


f  !  I, 

1 1  r 


Harper  v.  City  Insurance  C()ni|)any, 


AiM'EAL  from  the  Superior  Court  of  the  City  of  New  York. 

Action  upon  a  policy  of  fire  insunince  on  the  phvintiff's  "  pnntiri};  aii(i 
book  materials,  stoek,  paper,  stereotype  plates,  fixtures,  priiil«;(:l  Ijodks. 
and  steam-enj^ine  and  machinery  contained  in  [certain  descrihcdl  prem- 
ises] ,  and  privileged  for  a  piiiiting-office,  bindery,  and  book-store.'  The 
policy  provided,  in  its  printed  conditions,  that  if  the  premises  slioiihi  Itc 
used  for  carrying  on  any  business  denominated  hazardous,  or  extra- 
hazardous, or  specified  in  the  memorandum  of  special  ralx's,  or  for 
storing  articles  in  either  of  those  categories,  without  a  sj)e<!lnl  a;.'r.'e- 
ment  in  the  policy  therefor,  so  long  as  such  use  should  conl  iihk  ,  the 
policy  should  be  of  no  force.  "  Stocks  of  booksellers"  and  '  pniner^ 
of  Iwoks  "  were  specified  under  the  head  of  extra-hazardous,  and  the 
business  of  "  printers  of  booi<s  "  in  tiie  memorandum  of  spe.cia  ■.■.•.-.vs. 
Upon  the  trial,  it  was  proved  that  the  plaintiffs'  establishment  W!  -.  ;hc 
most  extensive  for  the  printing  of  books  in  the  (!Ountry ;  and  tin  nrv 
found  specifically,  in  answer  to  interrogatories,  tiiat  the  use  ol  i;;iin[)heiie 
was  general  among  printers  for  fine  work  in  tiie  printing  of  books. 
for  cleaning  ink-rollers,  washing  stereotype  plates,  etc.,  and  lliat  such 
use  was  not  only  more  advantageous  than  that  of  any  other  urtitrU .  I)iit 
necessary.  The  fire  was  occasioned  by  a  workman  throwing  a  li<ji!teil 
match  into  a  pan  upon  the  floor,  containing  camphene.  'I'ticie  w;>;  a 
verdict  for  the  plaintiffs,  subject  to  the  opinion  of  tlie  court;  aiil  i  lir- 
ment  having  been  rendex'ed  thereon  at  General  Term,  the  (l(yl<  iraat^ 
appealed  to  tliis  court. 

John  H.  KeynoklH,  for  the  appellant;  Williani,  M.  Evarts,  fo;  the 
respondents. 

CoMSTOCK,  C.  J.  — The  jury  found,  in  answer  to  interrogalori' s  spe- 
cially submitted  to  them,  that  the  use  of  camphene  in  the  manner  p cve'l 
was  according  to  a  general  and  est^iblished  usage  in  the  priiiliiii:  ami 
book  business  as  carried  on  by  the  plaintiffs,  and  that  sucii  use  was 
necessary  in  that  business.  In  the  written  part  of  the  policy  the  siilijeet 
of  insurance  is  described  as  the  i)laintiffs'  printing  and  book  rnalerials. 
stock,  etc.,  "privileged  for  a  printing-office,  bindery,  etc."  Tlie  lan- 
guage is  identical  with  that  contained  in  the  policy  whicii  wiis  befop  iis  in 
the  case  of  Harper  v.  Alban;/  Insurance  Company.^  We  there;  t»ei(l  fci 
reasons  which  need  not  be  repeated,  that  the  insurers  were  liiil)le  for 
a  loss  occasioned  by  the  necessary  and  customary  use  of  eampheiK  in  the 
plaintiffs'  business,  although  the  use  of  that  article  was  proliihitcil  in 
general  terms  in  the  printed  conditions  annexed  to  an«l  forming  a,  part 
of  the  contract.     In  that  case,  the  printed  form  of  the   policy,  li  ton- 

'  17  N.  Y.  19*. 


m 


iy"  ' 


Wwm 


FIRK    IN8UUANCE. 


i;>:> 


Illiistr.itivc  Cases. 


slniofl  without  reference  to  the  subject  of  iusuran(!e  us  (h'scribcd  in  tl)e 
wiitten  jiart,  |iros<M"ibed  the  use  or  presence  of  Ciirnpheiie  for  iiuy  pur- 
pose. In  this  case,  the  jirinled  condition  de(;lares  in  substance  thai  if 
the  article  is  used,  and  a  lo.ss  is  occasiontid  thereby,  the  insurer  will  not 
be  liable.     There  is  no  other  distinction  between  the  two  cases. 

And  this  (listinction  is  not  one  of  piin(;iple.      In  the  case  cited  we 
f.)iiiid   no   irieconcilable    repugnancy  between  the  written  and  printed 
tliuiscs  of  the  contract.      If  such  a   repugnancy  iiad   been   discovered, 
tlieii,  as  the  court  said,  the  printed  form  must  yiehl  to  the  more  careful 
ami  deliberate  written  language  of  the  parties  in  describing  the  subject, 
of  insurance  at  the  very  moment  when  the  poli(!y  was  issued.     But  it 
was  considered   tlnit  each   cliuise  might  take  effect.      By  insuring  the 
plaintift's'  stock,  with  the  privilege  of  a  printing-olHce  and  book-bindery, 
tlic  use  of    such  materials,  including  cainphene,  as  were  necessary  in 
that  business  was  allowed;   otherwise  the  contract  was  a  mere  delusion. 
Bnt  the  restraining  clause  might  nevertheless  have  its  full  effect  upon 
till'  use  of    cauiphene  for  the  purposes  of  light,  and  for  all  purptjses 
beyond  its  necessary  connection  with  the  stock  and  l)Hsiness  insured. 
So.  in  this  ca.se  camphene  must  be  considered  as  a  part  of  the  st(jck 
iiisuretl.      Its   continued    in-esence  and  use   were   allowed,   because  the 
husiin'ss  which  required  its  use  was  expressly  {HMvileged.     The  printed 
(•oiidition  exempting  the  uuderwiitcrs  from  loss  when  occasioned  by  thi.-< 
aiticlc  should  theivfore    be  construed  as  i-eferring  to  uses    not  within 
the  privilege  thus  granted ;    otherwise,  the  two  parts  of  the  contract 
aie  repugnant  to  each  other,  and  the  jmnted  form   must  yield  to  the 
(Idibcrate  written  expression.      An  insurance  upon  the  |)l!iiiitiffs'  stocU 
ami  business,  to  be  of  no  effect  if  a  loss  shouM  be  occiisioned  by  the 
I'diiibustion  of  an  article  constituting  a  pait  of  that  stock  and  neces- 
sarily used  in  the   business   would,  I  think,  be  an  anomiUous   under- 
taking.    Undoubtedly,  such  a  contract  might  be  made.     A  policy  can  be 
so  framed  as  to  allow  the  presence  of  a  dangerous  article,  and  even  «o 
us  to  insure  its  value,  while  at  the  same  time  it  might  exempt  the  insiu'cr 
from  loss  if  occasioned  by  the  presence  or  use  of  the  article.     But  I 
think  it  would  need  very  great  precision  of  language  to  exjiress  such  an 
intention.     Where  camphene  or  any  hazardous  fluid  is  insured,  and  it,'^ 
use  is  plainly  admitted,  the   dangers   arising  from   that  source  are  so 
obviously  within  the  risk  undertaken  that  elTeM,  should  be  given  to  the 
puliey  ac(;ordingly,  unless  a  different  intention  is  very  ()luinly  declared. 
And  such  intention,  instciid  of  being  hid  away  in  printed  forms  remote 
from  the  prii\c  pal  contract,  ought  to  be  found  in  tlie  delibeiate  expres- 
siou!^  which  are  luade  use  uf  at  the  time  when  the  ooutract  is  eutered 


^ 

1          1 

■ 

m 


\u§ 


•   i  1 


M  1  ,• 


t 


It!  '  ; 


Ij 

1 

ffl-'  '' 

■   ■ 

iii' 

''«;, . 

' 

Mm 

0-„ 

I'M 

i 

K  1* 

1()0 


I.N   i)nFi;ui:xT  relations  and  occxpatio.vs. 


Walsh  V.  Homor. 


into.  WitliDUt  (l(>ul)t,  all  the  printed  conditions  and  spccificatiDiis 
annexed  to  a  pt;liey  aiv,  or  at  least  may  be,  a  part  of  it.  But  they  relate 
to  insurance  in  general,  as  practisL'd  Ijy  the  underwriter,  and  ui)on  or 
Within  those  forms  the  i)arties  to  each  policy  actually  issued  write  their 
o\v  1  i)articular  intention.  The  plain  meaning  of  the  written  part  should 
vefore  prevail,  and  other  clauses  must  yield,  if  repugnant,  or  they 
must  be  construed  so  as  to  avoid  a  conflict  of  intentions.  In  this  case, 
1  think  the  perils  of  keeping  and  using  camphene  were  insured  against, 
so  far  as  the  keeping  or  use  of  it  was  permitted  at  all,  and  that  the 
clause  which  exempts  the  insurer  from  liability  should  be  understood  as 
applying  to  the  jirewf'"'    •  of  the  article  under  other  conditions. 

The  judgment  s'        i    '^  affirmed. 

Davies,  Wright   x..  .t  x,  and  Welles,  JJ.,  concurred  ;  Selden,  Demo, 
and  Clerke,  JJ.,  dissented. 

Judgment  affirmed. 


15.  MARINE   INSURANCE  —  USAGE   MAY  EXCUSE   A  DEVIATION. 

Walsh  v.  Homek.* 
In  the  Supreme  Court  of  Missouri,  March  Term,  1846. 


Hon.  William  B.  Napton, 
'«     William  Scott, 
"      Pheistly  H.  McBlUDK, 


Judges. 


Evidenoc  that  It  is  the  usage  of  the  carrying  trade  for  one  boat  on  a  voyage  to  stop  and 
aid  another  boat  in  di.'stress,  is  competent  to  show  that  such  is  not  a  deviation. 

Appeal  from  the  St.  Louis  Circuit  Court. 

Gamble  &  Bates,  for  the  appellants  ;  Ge>ier  &  Spaulding,  for  the  ap- 
pellee. 

Scott,  J. ,  delivered  the  oi)inion  of  the  court. 

This  was  an  action  on  the  case,  brought  in  the  St.  Louis  Circuit  Court 
by  the  appellee,  as  surviving  partner  of  the  Arm  of  J.  &  T.  J.  Ilonier, 
against  tiie  appellants,  as  owners  of  the  steamboat  R<jlla,  to  recover  for 
the  loss  of  certain  goods  shipped  on  board  that  boat  at  New  Orlea.is. 
Tlie  verdict  and  judgment  were  in  favor  of  the  plaintiff  below,  and  the 
cause  is  lirought  into  this  court  l)y  appeal. 

The  first  count  of  the  declaiation  sets  forth  a  policy  of  insurance  on 
goods  of  the  plaintiff  made  by  the  St.  Louis  Perpetual  Insurance  Com- 
pany, and  alleged  tliat  goods  covered  by  the  policy  were  shipped  on 

•  Reported  10  Mo.  6. 


MAKINE    INSLKANCE. 


itU 


Illustrative  Cases. 


hoard  the   Rolla,  of  which  the  defoudiints   were  the  owners,  at  New 
Orleans,  to  be  transported  to  St.   Louis ;   that  dnrinj;  the  voyage  the 
master  of  the  Rolla  deviated,  etc.,  an<l  detained  and  employed  the  l)oat, 
with  the  goods  of  the  i)laintiff  on  board,  in  relieving  the  steamboat 
Gi'i)rge  Collier,  which  was  aground  in  the  Mississippi,  and  in  transport- 
ing goods  from  the  Collier  to  the  shore,  no  life  being  in  danger;  and 
that  although  the  Rolla  did,  after  such  detention,  etc.,  proceed  on  the 
voyage  with  the  goods  on  board,  yet  the  said  steamboat  Rolla,  with  the 
.s;iid  goods   and  merchandise,  by  reason  of  tlie  said  defendants,  their 
si'ivjints,  and  agents  in  that  behalf,  not  proceeding  therewith  from  New 
Orlriins  aforesaid  to  St.  Louis  aforesaid  as  soon  as  they  were  reasoiial)ly 
alile,  by  and  according  to  the  direct,  usual,  and  customary  way  and 
passage,  but,  on  the  contrary  thereof,  deviating,  departing,  touching,  or 
remaining,  continuing,  and  biding  delayed  as  in  that  behalf  aforesaid, 
and  before  her  arrival  at  St.  Louis  aforesaid,  at  the  county  aforesaid, 
was  exposed  to  and  assailed  by  storms  and  other  i)erils  on  the  Missis- 
sippi near  a  certain  island  called  Island  No.  21,  and  then  and  there  was 
run  and  driven  on  a  snag  or  other  hard  substance,  and  was  wrecked, 
shattered,  and  broken,  by  means  whereof  the  same  goods,  etc.,  of  plain- 
tiff on  board  said  boat  were  wetted,  damaged,  spoiled,  and  sunk,  and 
wliolly  lost  to  the  plaintiff,  and  by  reason  of  said  deviation,  departure?, 
detention,  and  stoppage  of   the  said  steamboat  Rolla,  with  the  said 
goods,  etc.,  on  board,  by  the  defendants,  their  servants,  and  agents,  as  in 
that  behalf  aforesaid,  the  said  insurers  in  the  said  policy  of  insurance 
mentioned    be(!ame  and  wero   discharged  from  all  liability  for  or  on 
account  of  the  said  damage  and  loss,  or  any  {)art  thereof. 

The  second  and  third  counts  are,  in  substance,  the  same  as  the  first. 
The  fourth  count  is  in  the  ordinary  form  against  carriers  for  the  loss  of 
goods,  averring  that  the  defendants  did  not  safely  and  securely  cany 
and  <leliver  the  goods  according  to  their-  undertaking,  but,  on  the  vou- 
tiary,  so  improperly  behaved  and  conducted  themselves  with  resi)ect  to 
said  goods,  that  by  and  through  the  mere  negligence,  misconduct,  and 
default  of  the  defendants,  their  servants,  and  agents,  the  goods  were 

lo^t. 

The  defendants  pleaded  not  guilty  At  the  trial,  the  plaintiff  gave  in 
evidence  the  policy  of  insurance  and  the  indorsements  thereon,  and 
offered  evidence  conducing  to  i)rove  the  shipment  of  goods  covered  by 
that  policy  on  board  the  Rolla,  at  the  time  and  for  the  voyage  mentioned. 
I  arts  of  the  evidence  on  this  i)oint  were  objected  to,  but  the  objections 
wpri'  overruled.  That  George  Taylor  was  the  master,  and  the  defend- 
ants owners  of  the  boat;  that,  on  the  progress  of  the  voyage,  the  Rolla 

11 


Pi  ' 


-1 


m 


i  Vil 


.  f  T.'l 


■  >  ■-SI 


'■{11 


i;f  .  ^ 


:''  :  ^ « 


1 

1 

i 

1()2 


IN    DIKFIOUKNr    UKLATIONS   AND    OCCUTA  I'lONS. 


Walsh  V.  Hoiiur. 


WHS  (Ictiii  110(1  mid  cm  ;ii\(«l  in  ivlicviiijj;  tlu;  Cr)lli('r.  tlieii  agroiirul.  liy 
tnuisportiiijr  <roo»ls  Iroin  ilml  vessel  to  tlie  shore,  uiid  in  iitleinpliiiu  to 
pull  her  off  tlie  bur  iiy  l!ie  power  of  the  Kolla;  tluit  tlie  Rolla  uilerwuriis 
procc^edcil  on  llie  vo\;iij;e,  and  was  wrecked  as  alleged,  and  the  i^oods 
of  the  phiiiitiff  lost. 

",»'iliu!sse3  testifii'd  lliat  from  tlie  commencement  of  steam  ii;iviuntion 
on  the  Western  waters  it  had  liccu  the  uniform  iisa<ife  and  custom  of  all 
boats,  when  niectim?  another  boat  a<:jround,  to  afford  any  assistance  in 
their  power;  and  althoii;4li  it  was  the  uniform  practice  to  (thari^e  for  such 
8ervi(;e,  yet  no  stipnh'^'.on  for  such  compensation  was  made  before  fur- 
nishing tiie  aid  reijuired.  This  usage  was  generally  known  to  nierchants 
and  insurers. 

It  was  proved  tliat  after  the  opinion  of  this  court  in  the  case  of  iSeftJe 
V.  St.  Louis  Perpetual  InaHrancc  Comptnij/,^  the  diffcient  insurance  am- 
panies  at  St.  Louis  inserted  in  their  policies  a  clause  to  the  effect  that  iii 
case  of  loss  after  deviation  to  give  succor  to  a  vcs'-;!  in  distnss.  the  l<),s< 
should  be  ]»aid,  n(»twitlistaiiding  tlie  deviation,  "upon  the  assiiieil 
assigning  to  the  company  all  claims  he  or  they  may  have  against  the 
owners  of  such  steaml»oat  in  consequence  of  such  deviation,  and  author- 
izing the  company  to  use  his  name  to  enforce  such  claim  for  the  beuefit 
of  the  comjiany." 

The  plaintiff  moved  the  court  to  give  to  the  jury  the  following  instruc- 
tions, which  were  given,  to  whicii  the  defendants  excepted,  viz. :  "  If  the 
jury  find  that  goods  of  the  plaintiff  covered  by  the  policy  in  the  decla- 
ration mention«'d  were  shipped  on  board  the  steamboat  Rolla  at  New 
Orleans,  to  be  carrii;d  to  the  port  of  St.  Louis;  that  said  boat  departed 
from  New  Orleans  on  said  voyage  with  the  said  goods  on  board,  and 
that  during  the  voyiige  said  steainl)  )at  Rolla,  with  said  goods  on  board. 
was  stopped  and  detained,  without  the  consent  of  the  plaintiff,  for  the 
purpose  of  assisting  the  steamboat  George  Collier,  then  aground  in  the 
Mississippi  River,  and  that  the  Rolla  was  there  used  and  emjiloyed  in 
transporting  cargo  from  the  Collier  to  the  shore,  and  in  attempting  to 
draw  the  said  Collier  into  deeper  water,  such  detention  and  employment 
was  a  deviation  which  discharged  the  underwriters  from  any  subsequent 
loss  of  said  goods  on  board  the  Rolla  during  that  voyage. 

"  If  the  jury  find  from  the  evidence  that  goods  of  the  plaintiff  cov- 
ered by  the  policy  in  the  declaration  mentioned  were  shipped  on  board 
the  steamboat  Rolla  at  New  Orleans,  to  be  carried  to  St.  Louis ;  that 
said  goods,  during  the  voyage,  were  lost  by  a  peril  insured  against,  and 
that  the  underwriters  were  discharged  from  liability  for  such  loss  by 

•  7  Mo.  379. 


MARINE    IMSUKAiNCE. 


16.i 


Illiisiriitivc  Cases. 


reason  of  tlu'  jtiwiouH  devialion  of  siiid  hojit  l»y  the  voluntiiry  siot  of  the 
master,  then  tlu;  owners  of  the  liollu  ure  liulde  for  such  loss." 

The  defendants  tlicn  iiskiul  tlie  foIh)\vin<if  instnielions,  .vliieh  weic 
n  fused,  to  which  an  exeeption  v,iis  taken,  viz.  :  — 

"That  tlie  jury  must  lind  for  the  <lefen(hints  on  the  three  fust  eonnlH 
ill  tlie  declaration,  unh'ss  Uuiy  lind  from  the  evideiuu'  thai  the  loss  of  the 
iriiods  and  merchandise  in  those  (founts  mentioned  was  actn:;lly  oc(ra- 
sioiie(l  by  the  alle^^ed  deviation  from  the  usual  course  of  the  V(jya;re 
ill  said  counts  mentionetl,  n^spectively. 

"The  plaintiff  cannot  recover  on  the  first  count  in  his  declaration 
for  the  loss  of  the  <?oods  tlie  re  in  mentioned,  unless  it  appejirs  to  the 
salislactioii  of  the  jury,  from  the  evidence,  that  the  sinl<iii<j  of  the 
stcamlioat  Holla  was  (jccasioned  by  the  alleged  deviation  in  that  count 
meulioned, 

"That  the  plaintiff  cannot  recover  on  the  second  count  of  his  ileitla- 
riitioii  for  the  loss  of  the  i^oods  therein  mentiont-d,  unless  it  a[)pears  to 
tiie  satisfaction  of  the  jury,  from  the  evidence,  that  the  sinl<in<ir  of  tlie 
sleamlioat  RoUa  was  occasii^ned  by  the  allegc'd  deviation  in  that  C(junt 
mentioned. 

"That  tiie  plaintiff  cannot  recover  on  the  third  count  of  his  decla- 
ration for  tiie  loss  of  the  goods  therein  mentioned,  unless  it  appears  to 
the  satisfaction  of  tiie  jury,  from  the  evidence,  that  the  sinking  of  i\w 
steaiiilioat  Holla  was  occasioned  by  the  alleged  deviation  in  that  count 
mentioned. 

"That  if  the  jury  find  from  the  evirlence  that  at  the  time  of  the  loss 
of  the  Rolla  there  was,  and  for  many  years  previous  ha<l  been,  a  <!Ustom 
and  usage  in  the  navigation  of  the  Mississippi  River  for  steamboats 
n;ivi<j;ating  said  river  to  stoi)  in  their  voyage  and  furnish  assistance  to 
otlier  steamboats  aground  in  said  river  and  in  distress,  and  that  such 
custom  and  usage  was  general,  and  generally  known  to  merchants, 
owners  of  boats,  and  insurers  conciirned  in  the  navigation  of  said  river, 
and  that  the  captain  and  crew  of  the  steamboat  Rolla,  in  the  alleged 
deviation  to  succor  the  steamboat  (Jeorffc  Collier,  airround  in  the  Missis- 
sip|)i.  did  no  act  and  suffered  no  detention  of  said  steamboat  Rolla 
beyond  or  out  of  the  said  custom  and  usage,  then  the  defendants  are 
not  respcmsible  for  any  act  of  the  said  captain  or  crew  which  is  within 
said  custom  or  usajie. ' ' 

Tho  principal  qu(  stion  in  this  cause  was  before  this  court  in  the  case 
of  Sfiitie.  V.  St.  Lnii.iH  Perpetual  Insurance  Company.^  In  that  suit,  the 
policy  of  insurance  was  executed  by  the  same  company,  the  shipment 

» 7  Mo.  379. 


m 


ii» 


''J 


-   f 


'■   X 


i<;4 


IN     Dll'FEKKNT    KKLATIONS    AND    OCGUI'ATIONS. 


Walsh  V.  flomor. 


was  for  the  s;iini'  voyu<j;e,  on  the  sjiiiie  vossol,  and  the  loss  hy  the  s.-uiip 
disaster  as  is  alleiired  by  the   (IcclMrMtioii    in    this  case.      In  th*i  ahdvc- 
mentioricd  eaine  the  point  most  debated  was  whether  the  deti'ntion  of  a 
vessel  in  the  iiaviijation  of  tlie  .Mississippi    for  the  purpose  of  siKtcoiin^ 
another  vessel  in  distress,  wlien   no  life  was  in  danger,  w,is  a  devi;itii)ii 
or  not.      K\fe[)t  in  the   case   mentioned,  it  does   not  :ippi:ir  th:it  tliis 
(juestion  Iims  come  up  for  ad,judi(!ation.      Kmin(uit  jud«^<'s  and  eU'inentury 
writers,  intliienced   by  the  benevolence  and  humanity  of  our  iiiw,  Iimvo 
not  hesitated  to  decltire  that  a  detention  on  a  voyiij;e  at  sea  to  relieve  a 
A'cssel  in  distress  is  not  an  act  which  would  discharcfe  the  underwriters 
to  a  poli(y  of  insurance  from  the  lial)ility  to  the  tissiireil,  in  the  fv»'iit 
of  a  loss  of  the  vessel  affording  the  succor.     Some   have  said   thnt,  a 
deviation  to  s:ive  life  or  to  succor  persons  in  distress  was  all()wal)le,  hut 
that  a  deviation  for  the  purpose  of  saving  property  would  discharge  the 
underwriters.     On  our  rivers,  boats  may  be  in  danger  w  hen  the  lives  of 
the  crew  and  passengers  are  entirely  safe,  but  in  ocean  nnvigation  a 
vt'ssel  can  scarcely  be  in  distress  unless  the  lives  of  those  on  board  ;ui' 
at  the  same  time  endangered.     Hence  the  language  of  the  books,  that  a 
detention  to  succor  vessels  in  distress  is  not  a  deviation  that  would  dis- 
charge the  underwi'iters.     Judge  Simjaoitk,  who  maintained  the  doctrine 
that  a  stoppage  to  succor  vessels  in  distress  is  not  a  devintion  wliieli 
would  discliarge  the  policy,  yet  holds  that,  under  the  pretence  of  suc- 
coring distress,  it  was  not  allowal)le  to  become  wreckers  at  the  risk  uf 
tiie  insurer.     So  Judge  VVashinuton  •  says:   "  The  general  delinition  of 
deviatior  is  a  voluntary  departure  from  the  course  of  the  voyage  insured, 
without  necessity  or  reasonable  cause,  and  I  recollect  no  case  where  t!io 
justificntion  is  jiot  essentially  connected  with  the  motive  of  safety  to  the 
l»roperty  insured.     If  the  object  of  the  deviation  be  to  save  the  life  of 
a  man,  I  will  not  be  the  first  judge  to  exclude  such  a  case  from  the 
excejrtions  to  the  general  rule." 

In  the  case  of  Si'tlle  v.  St.  Louis  Perpftiial  Insurance  Company  it  was 
admitted  tliat  no  life  was  in  danger,  and  of  the  two  questions  in  that 
case,  —  whether  a  deti'ution  to  relieve  vessels  in  distress  when  no  life  w:is 
in  danger  would  discharge  a  policy,  and  whether  thei-e  was  a  usage  in 
tlie  inland  -aavijation  of  our  rivers  which  would  jnstity  a  deviation  f^r 
such  a  purp  >se,  —  tiie  lirst  was  most  elaltorately  argued  at  the  bar,  aiul  i' 
did  appear  that  it  was  a  turning-i)oint  of  the  cause.  I  am  not  prepiired 
to  say  tliat  the  conclusion  to  which  this  court  arrived  on  the  former  ef 
these  questions  was  erroneous. 

In  ado^jting  the  form  of  the  |)olicies  used  in  marine  insurance,  it  must 

»  Bond  c.  Tlie  Uura,  '2  Wasli.  C.  (Jl.  «t. 


I)    :i 


Wt'"^ 


Ini ' 


MAKINE    1N8UKANCK. 


i(i;» 


Illnstrutivu  Casfs. 


luivc  boi'ri  miderstood  thiit   tlioy  shoiiM  recoive  flunr  lon^-acciistdiiiol 
ititciprotation.      No  wise,  I  iin:i<^ii»e,  ouii  bo  fr>iiiiil  in  the  hiw  of  maiiiic 
iiisiiriiiice  in  vvliioh  it  \V!is  held  thtit  a  dcviatioM  to  :issist  si  vt'ssc;!  us  littir 
expuscMl  as  the  CoUitu' was  a  jiistithibie  d'viation.     ('mr.r    'ts  of  insui- 
niicf  luv  said  to  be  iberri  nuUm  Jidei.     Tiie  vessel  an<l  caii^)  are  in  tlie 
posKc-sion  and  under  Mic  control  of  persons  who,  relyini:;  on  the  policiy 
for  an  in<K'.mnity  against  losses,  are  stimulated  toaets  whicli  tlic  dictates 
of  self-interest  would  (iffecftuully  restrain,  while  those  who  are  mostly 
inliMtstetl  in  their  preservation,  and  ar^   "iable  to  make  jrood  any  losses 
tliiit  may  oe(;ur,  are  at  a  f^reat  distance.     Any  latitmlc  of  discretion 
allowed  to  nuuslers  of  vessels  under  such  circumstances  would  lesul  to 
the  i;;(»ssest  frauds   on    underwriters.     Tlie    reasons   whicii   gnvern   in 
mouMini;  the  hiw  in  nilation  to  the  responsibility  of  common  carriers 
lie  at  the  foundation  of  the  rule  pr<iscribin<^  the  duties  of  the  mastiM-s  of 
vo-^sels  in  respect  to  those  who  hav^  made  themselves  responsible  for 
tlioir  loss  by  instlrancc.     Tiie  law  fixing  the  resi)onsil)ility  of  common 
carriers  is,  as  L(jrd  Hor/r  ol)serves,  "a  politic  estaldislimeiit  contrived 
by  the  policy  of  the  law  for  the  safety  of  all  i)ersi)ns,  the  necessity  of 
wlii'S(:  al't'airs  obliges  them  to  trust  these  sorts  of  persons,  that  they  niiiy 
be  sale  in  their  denlings.      F'or  else  these;  carriers  might  liave  an  oppor- 
tunity of  undoing  all  persons  that  had  any  dealing  with  them,  ])y  com- 
bining with  thieves,  etc.,  and  yet  doing  it  in  such  a  cland'-'.ine  mamiei- 
as  \V(juld  not  be  possible  to  be  discovered  ;  and  this  is  the  tei.sou  the  law 
is  founded  upon  in  that  point."     Tiie  law  requires  that  a  voyage  siiould 
hi'  peri'onneil  with  all  practicable,  safe,  and  convenient  expitiii ion.      The 
iinpitssibility,  in  many  cases,  of  determining  whether  a  sul»se(iuent  loss 
iias  Ijcen   caiisisd  l)y  a  previous   detention   is  tlie  reason  that  vessels 
insured  are  not  ))ermitted,  at  the  risk  of  the  insurer,  to  stop  on  their 
vuy!ig(>s,  liiiless  in  cases  of  necessity.      A  very  short  detention  may  Im; 
tlii'eaise  of  loss  of  a  vessel,  and  yet  tlie  kciiuest  atttMition  will  not  h<^ 
aliic  to  deti!ct  and  expose  the  train  of  incidents  wliich  (ioniiect  tlu;  two 
events.     IJence  it  hius  always  l)een  settled  that  a  departure  from  the 
usual  course  of  a  voyage,  or  a  detention  during  ii.  without  necessity  or 
justifiable  cause,  was  an  act  which  would  disch:i!;j,i-  the  underwriters  in 
the  evcnu  of  a  subsequent   loss.     By   the   terms   of   the  contract,  the 
insurer  only  runs  the  risk  of  the  voyage  agreed  upon,  and  no  other.     It 
is  a  cntidition  implied  in  the  policy  that  the  ship  shall  proceed  to  her 
port  uf  destination  by  the  shortest  and  safest  course,  and  with  all  prac- 
ticai)1e,  safe,  and  convenient  expedition;  and  if  the  assure<l  deviated  or 
stopped  on  the  voyage  witlunit  necessity  or  a  justifiable  cause,  it  is  a 
broach  uf  the  implied  warranty,   the  effect  of    which  is   to    discharge 


mm 


' ) 


!! 


m 


ilH 


'   '".4 


■i 


■sill 

m 


m 


■4, 


I 


I 


unit 

i 


i  .  ( 


IHG  IN     DIl'FKKKNT    KKLATIONS    ANI>    OCCUPATIONS. 

Willsll   I'.    IIoilUT 

the  (lU'lcrwritors  from  all  subsoqiUMit  rospcuislljility,  not  bcciuiso  the  risk 
is  lIuMt'liy  inrrcnscd.  hut  hi'Ciuisc  the  insured  had,  without  lu'c-cssitv, 
siihstiluU'd  aiiotlirr  voyanjo  for  that  which  wjis  iiiHurt'd,  and  tiu'icbv 
vaiii'd  it.  liy  tiio  contrac^t,  the  voya<?e  is  to  be  jx'rformed  with  all  |ii;ic- 
tioal)l('  s|MM'il.  After  a  detention,  the  vessel  at  any  time  during  her  suh- 
Mujiient  voyage  is  at  a  different  place  from  that  at  which  she  would  liavo 
beei;  had  it  not  been  for  the  detention.  Had  slie  been  at  the  phico 
where  a  SjX'edy  voyage  would  have  taken  her,  the  combination  of  cir- 
cumstances whi(!h  occasioned  the  loss  might  not  iiave  taken  place.  1  lie 
.vgeiicy  this  circumstance  had  in  producing  the  event  may  be  unknown, 
and  as  the  master  cannot  show  that  it  had  none,  there  is  no  hardship  in 
making  him  suffer  the  consequence,  as  his  unjustifiable  act  may  have 
been  the  cause  of  it. 

The  foregoing  principle's  are  applicable  to  insurances  on  voyagea 
exempt  from  the  control  of  any  custom  or  usage;  but  the  courts  all 
concur  in  the  opinion  that  when  the  insurance  is  descril»ed  to  be  on  a 
particular  voyage,  the  meaning  of  this  description,  as  well  as  the  lan- 
guage used  by  the  i)arties  in  other  parts  of  the  i)olicv,  must  be  iuscor- 
tained  by  its  general  acceptation  and  the  common  usage.  The  meaiiino; 
of  the  i)artii's  is  to  be  presumed  to  be  that  the  voyage  is  to  be  pursncd 
in  the  most  direct  and  safe  course,  and  the  adventure  conducted,  in 
general,  in  the  most  expeditious  manner,  as  far  as  is  consistent  with 
safety ;  and  if  there  be  any  departure  from  such  course  or  mode  of 
conducting  the  adventure  whereby  the  risks  insured  against  are  viuicd 
or  increasctl,  it  behooves  the  assured  to  justify  such  departure  bysiiow- 
iiig  a  usage  in  that  respect,  or  a  reasonable  necessity  for  it.'  Chancellor 
IvKNT  remarks  that  one  cause  of  litigation  in  the  courts  on  the  subject 
of  di'viation  is  as  to  the  facts  and  circumstances  which  will  be  sufficiont 
to  justify  it  on  the  ground  of  usage  or  necessity.-  Where  there  is  a 
known  us:ige  as  to  the  course,  or  touching  at  particular  ports,  or  any- 
t<iing  else  in  the  conduct  of  the  voyage,  the  parties  are  8up[)0sed  to  he 
acquainted  with  such  usage,  and  have  it  in  view  when  they  enter  into  tlip 
contract. 3  In  the  case  of  Noble  v.  h'eniioway,^  Lord  Manskikm)  snid: 
'•  Every  underwriter  is  presumed  to  l»e  acquainted  with  the  pijicti'-e  of 
the  trade  he  insures,  and  that  whether  it  is  recently  established  or  not. 
If  he  does  not  know  it,  he  ought  to  inform  himself.  It  is  no  matter  if 
the  usage  has  only  been  for  a  year."  The  Supieme  Court  of  the  United 
.States,  in  Columbian  Insnrtince  Coiiijxnn'  v.  Catlett,^  says  that  tlie  tnif 
meaning  of  a  policy  is  to  be  sought  in  an  exposition  of  the  words  will) 


'  1  Fli.  on  Ins.  480. 
-'  .1  Kent's  ('(iniin.  Mi. 
■  I  I'll,  on  Iii^.  4*1. 


<  1  Dong.  5li. 

'>  12  Wlieiit.  386,  :;87. 


'1   '   ■■  M 


MARINE    IN8URANCK. 


lui 


Illu>irative  Cases. 


11  li  rcuce  to  the  known  course  and  iisaj^t'  of  the   trade.     Tlie   f)arties 
must  bo  supfjoscd  to  contract  with  a  tacit  adoption  of  it  as  tlic  basis  of 
ilnir  cii^^aujcments.     Without  question,  atjy  unrt'asonahlc  dchiy  in  the 
(inliiiary  prot^rcss  of  the  voyajje  avoids  tiie  policy  on  this  account.     Hut 
wiiHt  delay  will  constitute  such  a  deviation  depends  upon  the  nature  of 
I  he  voyiige  and  the  usage  of  the  trade.     In  the  case  of  Clark  v.  United 
Mtrine  and  Fire  Insurance  Company,^  Judge  Sewai.i,  says  tliat  "  (jues- 
tiiMis  are  continually  arising  on  the  open  i.' mi  and  practical  con.struction 
of  policies  of   insurance,    a  species  ol'  contract  liable  to  a  variety   of 
incidents,  and  to  l>e  enforced  in  a  great  lainiber  of  ca.ses  distinguishable 
from  each  other  in  the  principles  applicable  to  the  decision.     For  rules 
to  govern  in  these  intjniries  there  is  more  than  ordinary  leference  to 
tv-tal)lished  usages;  and  these,  when  ascertained,  and  found  to  hi-  suit- 
aide  iipolications  of  general  [trinciples,  or  not  inconsistent  with  them  or 
with  the  tenor  of  the  contract  to  be  explained  and  enforced,  are  con- 
siilercd  as  authoritative  upon  the  parties.     A  reference  to  usage  is  fairly 
iiiiplictl  in  contracts  of  a  commercial  nature,  and  it  is  to  be  presumed, 
imleed,  in  the  co'i-.t ruction  of  contracts  generally,  where  the  (!onclusion 
is  not  avoided  by  spjicial  circumstances  or  stipulations."     In  the  case  of 
Gordon  v.  Little,''^  .Judge  Gibson,  who  denied  that  evidence  of  usage  or 
custom  iixing  the  construction  of  the  words  in  a  bill  of  lading  is  admis- 
sible, fully  recogni/A's  the  relaxation  of  the  common-law  rules  of  evidence 
in  the  case  of  a  poliry,  and  admits  that  the  usage  of  every  particular 
trade  necessarily  enti^r.-  into  every  policy,  and   is  resorted  to  for  the 
purpose  of  explaining  and  even  controlling  those  parts  of  the  inatru- 
meut  that  are  merely  formal. 

These  instances  are  sufficient  to  show  that  the  construction  of  con- 
tracts of  insurance  are  peculiarly  influenced  by  usage ;  that  evidence  of 
usiigo  is  received  for  the  purpose  of  ascertaining  the  sense  and  under- 
standing of  parties  by  their  contracts,  which  are  made  with  reference  to 
siicli  usage  or  custom  ;   and  that  the  custom  then  becomes  a  part  of  the 
C(iiiti;ict,  and  may  be  cousidered  as  the  law  of  it.     Policies  in  the  same 
Wvu\>  will  receive  different  interpretations  as  applied  to  different  voy- 
aiivs.     There  is  nothing  in  the  usage  relied  on  in  this  case  as  a  justi- 
fication for   the  detention  which  would  condemn  it  on  the  score  of 
impolicy.     As  tlie  services  are  always  rendered  for  a  remuneration,  not 
iiHRh  can  be  said  in  behalf  of  the  humanity  of  the  usage.     That  can 
only  be  vindicated  by  a  gi  atuitous  service,  and  making  those  rendering 
us>islance  their  own  insui'ers.     It  is  a«lniitted  that  the  usage  relied  on  as 
a  jiistitieatiou  for  the  detention  to  succor  vessels  in  distress  is  coeval 


'  7  Mass.  3(>i. 


=  8  Ser^'.  i\:  K.  Mi.  ante,  p.  123. 


i 


•■J 


'*;! 


k;'„U- 


r  I 


l\\    siV 


l.\ 


m^ 


I      ft 


ii 


ff^'l 


1(J8 


IN    DIFFKKENT    RELATIONS    AND    OCCUPATIONS. 


Walsh  V.  Homer. 


t  i- 


with  stoaml)Oiit  navif^ation  on  the  Mississippi  River.  It  must  be  pro- 
suincd  to  have  been  known  to  all  those  who  in  any  way  have  Ixin 
affected  by  it.  Contra(;ts  of  insurance  must  be  supposed  to  liave  been 
made  with  an  eye  to  its  existence.  Is  not  tlie  long  existence  of  tlie 
usage  some  evidence  of  its  ])olicy?  Had  it  been  found  contrary  to  tlu* 
pul)lic  good,  would  not  the  keen  and  steady  sense  of  their  interests  liavo 
induced  commercial  men  to  demand  its  abolition,  or  to  have  guardcil 
against  it  by  stipulations  in  their  conti'acfts?  This  has  not  been  done. 
Tlie  practice  still  continues ;  and  we  must  presume  that  the  master,  tlio 
shipper,  and  the  insurer  all  find  advantages  in  maintaining  and  support- 
ing it.  The  boat  that  renders  assistance  to-day  may,  in  iior  turn,  want 
it  to-morrow.  A  boat  of  compaiatively  little  value  may  be  destrnyid 
to-day  which  the  day  before  had  been  detained  in  saving  from  d(!st ruc- 
tion one  worth  thousands,  and  both  maj'^  have  been  insured  by  tlu^  suine 
underwriters.  Experience  must  have  shown  that  in  such  adveiitunvs  a 
nniprocity  of  kind  offl(;es  promotes,  upon  the  whole,  the  interests  of 
every  one  concerned  in  them.  The  abuse  of  this  usage  in  our  inlnnfl 
navigation  to  the  prejudice  ci  underwriters  cannot  be  carried  to  the 
excess  to  which  it  might  extend  in  the  navigation  of  the  ocean.  The 
facility  of  obtaining  witiicsses  to  a  breach  of  duty  by  the  master  would 
tend  greatly  to  check  all  a]iproaches  to  misconduct  on  his  part. 

I  am  free  to  confess  tliat  the  change  in  the  form  of  the  poli"y  "f 
insurance  which  was  made  by  the  insurancec  ompanies  in  St.  Louis  nrur 
the  decision  in  the  case  of  Sotlle  v.  K>t.  Louis  Perpetual  Insurance  Cum- 
parity  lias  had  its  influence  on  my  mind  in  the  determination  of  this 
cause.  If  the  law  was  declared  in  that  case  as  it  had  previously  hocn 
understood,  why  make  the  change?  That  change  shows  tliat  the  delVuci' 
set  up  by  tlie  compiiny  in  the  above-mentioned  case  was  unjust;  that  the 
understanding  of  the  parties  was  that  a  detention  to  save  vessels  in  dis- 
tress W!is  justifiable.  I  had  my  douI)ts  how  far  the  usage  set  up  should 
ojH'rate  in  the  construction  of  the  contract;  but,  now  that  the  solenui 
admission  is  made  of  record  that  the  usage  was  in  fact,  and  not  Tncnly 
m  the  eye  of  the  law,  in  the  contemplation  of  the  parties  at  tiie  tiiiu'  of 
entering  into  the  contract,  and  as  there  is  nothing  in  that  usage  contrarv 
to  the  policy  of  the  law,  I  can  see  no  ground  for  withholding  from  it 
its  full  elTcct.  The  peculiar  piu'aseology  adopted  in  making  the  alhr- 
ation  in  the  contract  of  insurance  catuiot  disguise  its  real  object.  I  am 
glad  it  is  yet  in  the  power  of  the  court  to  correct  the  irregularity  of  the 
former  decision.  I'ride  of  consistency  shall  never  induce  me  to  iKi^isl 
in  error. 

Nai'ton,  J.,  concurring,  the  judgment  will  be  reversed. 

Juiiymint  rpverscd. 


!P"ll'ri 


LANDLOUD    AND    TENANT. 


UA) 


Illiistralive  Cases. 


16.  LANDLORD    AND     TPiN ANT  —  CUSTOM    AS    TO    WAYCiOING    CROP. 
WiGGLESWORTII    V.  DaLLI80N.* 

In  the  Court  of  King'' X  Bench,  Troiifif  Tcmu  1779. 

William,  Earl  Manskikld,  Lord  Cliirf  Jnxtice. 
Edward  Willks,  Escj.,  > 

Sir  William  FIknky  Asiim  kst,  Kt.,   j.  Justices, 
Francis  Bullku,  Ks(|.,  ) 

A  custom  that  a  (ciiaiit.  whcilicr  of  parol  or<lt!n(l,  shall  have  the  waygoing  crop  after  the 
t'xpiratioti  of  his  term,  if  not  re|ui^iiaiit  to  the  lease,  is  gootl. 

This  was  an  action  of  trespass  for  niowiiij^,  carrvinti;  away,  and  con- 
verting to  the  flefcndaiits'  own  use  the  corn  of  the  phiintiff,  j^rowinji;  in 
a  field   called  Ilihnldstow  Leys,   in  the  pniisli  of   IlilKildstow,  in    the 
county   of    Lineohi.     Tlie   defendant   Dallison    iilended    liberum   tPii<'- 
■ineiitnm,  and  the  otlier  defendjint  justified  as  his  sei\:int.     Tlie  ithiiiiliff 
replied,  tlint  true  it  w.i>;  tiiat  the  locus  in  quo  was  the  close,  soil,  .-md 
I'ni'liold   of    Dallison;  hut.   after   stating   that   one    Isabella  Dnllison. 
deceased,  being  tenant  1<  r  life,  and  Dnllison,   the  reversioner  in  fee, 
made  a  lease  on  the  2d  of   March,   IVT-;!,  by  which  the  stiid    FsMludla 
demised  and  the  said  Dallison  confirmed  the  said  close  to  the  plnin- 
tiff,  his  executors,  ;idministrators,  and  tissigns,  for  twenty-one  yetirs.  to 
be  computed  from  the  1st  of  May,  1755,  and  tliat  the  plaintiff,  by  virtue 
thereof,  entered  and  continued  in  possession  till  the  end  of  tlie  said  term 
of  the  tAventy-one  yetirs,  he  pleaded  a  custom,  in  the  following  woi-ds, 
\\i. :  "TliMt  within  the  parish  of  HibMldstow  there  now  is,  :ind  from  tinn., 
whereof  tlie  memory  of  man  is  not  to  the  (Contrary  there  h.'ith  been,  a  cer- 
tain ancient  and  laudable  custom  there  used  and  approved  of:  that  is  to 
say.  that  every  tenant  and  f tinner  of  tmy  lands  within  the  siitne  parish, 
for  any  t^Min  of  years  which  had  expinni  on  the  first  day  of  .May  in  ;iny 
year,  liath  been  used  and  accustomed,  and  of  right  ought  to  have,  take, 
and  enjoy  to  his  own  use,  and  to  reap,  cut,  and  carry  away  when  ripe 
and  tit  to  be  reaped  and  taken  away,  his  waygoing  crop:   that  is  to  say, 
all  the  corn  growing  up<»n  the  said  lands  wlii*  h  hatii  l^efore  the  expiration 
of  such  term  been  sown  by  such  tentuit  upon  any  ptirt  of  such  lands,  not 
t'xeecding  a  reasonable  quantity  thereof,  in  proportion  to  the  residue  of 
such  lands,  according  to  the  course  and  ustige  of  husbandly  in  the  same 
parish,  mid  which  hath  been  left  standing  and  growing  upon  such  lands 
at  the  expiration  of  such  term  of  years."     lie  then  staled  that  in  the 

•  l{f|M)rli;(l    l»nu)f.  -Jill,;    1  Smith's  K<|.  (as.  !KKJ. 


if} 


1 


;  ;   V''j 
;  t 


11 


i 

n 

'I 

""if 

tl 

\- 

1 

■  '.J 

v\ 

\i 

■\ 

'  ..1l 


m 


170 


IN    DIFFERENT    RELATIONS    AND    OCCUPATIONS. 


Wi'j{i't''*worth  V.  Diillison. 


year  1775  he  sowed  with  com  part  of  the  said  ehise,  being  a  rcasoiKihlo 
psirt  in  prijpoition  to  tiie  residue  tliereof,  aeednling  to  the  course  and 
usage  of  husbandry  in  the  said  parish,  and  that  the  corn  proibieed  and 
raised  by  such  sowing  of  the  corn  so  sown  as  aforesaid,  being  tlie  corn 
in  the  dechiration  mentioned,  at  the  end  of  tlie  term,  and  at  tlie  time  of 
the  trespass  committed,  was  standing  and  growing  in  the  said  closv-,  the 
said  time  not  exceeding  a  reasonable  time  for  tlie  same  to  stand  in  order 
to  ripen  and  become  fit  to  be  reaped,  and  tliat  lie  was  during  all  that 
timt!  lawfully  possessed  of  the  said  corn  as  ids  absolute  propi-rty,  hy 
virtue  of  the  custom.  The  defendant,  in  his  rejoincUir,  denied  the 
existence  of  any  such  custom,  and  concluded  to  the  contrary.  The 
cause  was  tried  befoi'c  I'^yisk,  B.,  at  the  last  Assizes  for  Lincolnshire^ 
when  the  jury  found  the  custom  in  the  words  of  the  replication. 

Baldwin  moved,  in  arrest  of  judgment,  that  suc'i  a  custom  wasrepufj;- 
nant  to  the  terms  of  the  deed,  and,  therefore,  though  it  might  be  good  lu 
res|)ect  to  parol  leases,  could  not  have  a  legal  existence  in  the  case  of 
leases  by  deed.  lie  relied  on  Trninper  v.  Carwardine,  before  Yatks, 
J.,'  the  circumstances  of  which  case  were  these:  — 

'•Tlie  plaintiff  had  been  lessee  under  the  corporation  of  Hereford  for 
a  term  of  twenty-one  years,  which  expired  on  the  4th  of  December, 
17(i7.  In  the  lease  there  was  no  covenant  that  the  tenant  should  have 
his  offgoing  crop.  In  the  seed-time  l)ef()re  the  expiration  of  the  terra 
he  sowed  the  fallow  with  wheat.  The  succeeding  tenant  obstructed  liim 
in  cutting  the  wheat  when  it  became  ripe,  and  cut  and  hdused  it  himself, 
for  his  own  use.  l^pon  this  the  plaintiff  brought  an  action  on  the  ciuse, 
and  declared  on  a  custom  in  Herefordshire  for  tenants  who  quit  their 
farms  at  Christmas  or  Candlemas  to  reap  the  corn  sown  the  preeediii«; 
aut  !mn.  Yatks,  J.,  held  that  the  custom  could  not  legally  extend 
to  leases  by  deed,  though  it  might  jirevail  by  implication  in  the  case  of 
parol  agreements  :  that,  in  the  case  of  a  lease  by  deed,  both  parties 
are  liouiid  by  tiie  ixpress  agreements  contained  in  it,  —  as,  that  the  term 
shall  exi)ire  at  such  a  day,  etc.,  —  and  therefore  all  implication  is  taken 
away ;  that  if  such  a  custom  could  be  set  up,  the  Statute  of  Frauds 
would  be  thereby  superseded  in  Herefordshire.'^  Accordingly,  the  plain. 
tiff  did  not  ler-over  on  the  custom,  although  on  another  count  (in  tro.er) 
in  the  same  (h'(daration  he  had  a  verdict." 

A  rule  to  show  cause  wius  <rranted. 


'  At  the  Summer  Aasizes  (or  Hereford- 
f<lilrf,  17«i). 

-  Qiiiere,  This  arKumeiit  Rceiim  more  ap- 
plicable to  parol  leases,  because,  if  a  par(<l 


lease  for  three  years  cnnld  bo  extenih'il  in 
Home  (lej(ree  for  half  a  year  longer  liy  sui'liii 
cusloin,  It  iiii)(lit  be  said  that  this  woiiiil  l^-' 
repugnant  to  the  Statute  of  Frauds. 


LANDLORD    AND    TB^NANT. 


171 


Illustrative  Cases. 


The  case  was  argued  on  Tuesday,  the  8th  of  June,  by  Hill,  Serjt., 
Chambre,  and  Dni/rdl  for  the  phiiiitiff.  and  Cus/ ,  Bdhhrin,  Bul'juij, 
and  (rough  for  the  defendants,  when  three  objections  were  made  on 
the  part  of  the  defendtmts,  viz.  :  (1)  that  the  custom  was  unreasonable ; 
(2)  that  it  was  uncertain;  (JJ)  that,  as  lias  been  contended  on  moving 
for  the  rule,  it  was  repugnant  to  the  deed  under  which  tlie  phiintiff  liad 

held. 

For  the  plaintiff  it  was  argued:   First,  that  it  was  not  :in  unreas  mablc 
custom,  l)e(!ause,  without  an  express  agreement,  or  such  a  cixstom  as 
this,  there  would  be  no  crop  the  last  year  of  the  term,  for  the  tenant 
would  not  sow  if  he  could  not  reap,  and  the  landli)rd  would  not  have  a 
ri<jlit  to  enter  until  the  exi)irati()n  of  the  term  ;  that  it  w;us  for  the  ad- 
vantage of  the  public  as  much  as  customs  for  turning  a  plough  or  drying 
nets  on  another  person's  land,  which  had  been  held  to  be  good;  '  that 
it  bore  a  great  analogy  to  the  right  of  emblements,  and  was  founded  on 
the  same  principle,  namel}',  the  encouragement  of  agriculture.      It  was 
not  prejudicial  to  any  one:   not  to  the  landlord,  because  without  it  his 
land  must  be  unemployed  and  unproductive  for  a  whole  s«>ason ;  nor  to 
the  succeeding  tenant,  because  he  would  have  his  turn  at  the  end  of  the 
term.     /Second,  that  it  was  sufficiently  certoin,  by  the  reference  to  the 
residue  of  the  lands  not  sown,  and  to  the  course  and  usage  of  husl»andry 
in  the  parish.     This  is  as  nuich  certainty  as  the  nature  of  the  subject  will 
alniit  of ;  for,  if  it  had   been  that  so  many  acres  might  be  sown  and 
H'aped,  that  would  have  been  incompatibh'  with  those  variations  in  the 
proportion  of  ploughed  land  which  arise  at  different  times,  from  cir 
cunistances  in  the  course  of  i-ultivation  :nid  husbandry.     "  Reasonaltle  " 
is  an  epithet  which  sufTiciently  qualities   the  extent  of  t    stoma,  and  is 
(rcnenilly  used  in  pleading  them  —  as,  with  regard  to  customary  tines  paid 
tft  the  lord  of  a  manor,  estovers  prescribed  for  by  a  party  to  be  taken 
for  the  use  of  his  iiousc,  etc.     In  the  case  of  liennin(jli))i  v.  Taylor, 
reported  in  Lutwyche,^  vvhere  the  defendant  in  an  action  of  trespass 
had  pleaded   a  right  to  distrain  for  twidve  pence  for  shdlage.  due  by 
prescription,  for  the  land  near  every  st:dl  in  a  fair,  and  on  a  motion  in 
arrest  of  judgment  it  was  objected  that  the   prescription  was  uncertain, 
iMid  therefore  void,  the  quantity  of  land  not  being  a,scertained,  the  court 
held  it  to  be  certain  enough,  because  the  (piantity  was  to  be  ascertained 
hy  the  common  usage  of  the  fair.     In  all  su<'h  ca.ses,  whether  the  quan- 
tity or  amount  is  in  truth  resisonabU'  or  not,  it  is  for  the  jury  to  decide. 
Third,  that  the  circumstance  of  tin?  i)laintiff's  lease  in  this  c;ise  having 
been  hy  deed  made  no  difference.     I'here  was  no  agreement  contained 

'  Vide  Oavis,  i'i  b.  "  C.  !».,  K.  or  T.,  1 .'  VVm.  HI.,  i  r.utw.  1617,  I'.I'J. 


■  ■    H 


m 


It ' 


111 

1 

I 


f 


p  r 


172 


IN   i>iFi  ki:km"  uklatiun>  axu  occupations. 


Wif^glessworth  v.  Dallison. 


in  the  deed  tiiat  the  defendant  would  depart  from  the  custom,  althouirli 
the  parties  nuist  have  Itnown  of  it  when  the  lease  was  executed.  IIi 
did  not  claim  under  any  parol  contract,  express  or  implied;  and  tlieni- 
foro  the  argument  of  repugnancy  did  not  apply,  and  the  Nisi  Prins 
case  which  had  been  cited  went  upon  mistaken  reasoning.  Hill,  Serjt., 
admitted  that  he  knew  of  no  instance,  in  the  reports,  of  a  similar  custom 
to  this  in  th(^  case  of  freehold  property;  but  he  said  there  were  sevi'r:il 
with  regard  to  copyholds  that  went  much  farther,  and  he  cited  Eaufrouri 
Y.Weekes,^  where  a  custom  that  the  executors  and  administrators  (»t' 
every  customary  tenant  for  life,  if  he  should  die  between  Christmas  ami 
Lady-day,  should  hold  over  to  the  .Michaelmas  following,  is  state!  in 
the  pleadings,-  and  no  objection  taken  to  it  on  the  argument  of  rlic 
case. 

For  the  defendant  were  cited  C> rniithaw  v.  Jlnioley^  and  While  v. 
Sayer,^  \n  which  la^st  case  a  custom  for  a  lord  of  a  manor  "to  liii\e 
common  of  pasture  in  ail  the  lands  of  his  tenants  for  life  or  vcnrs."' 
which  had  been  pleaded  in  justification  of  a  trespass  in  the  In;  d  o!  ;i 
tenant  for  years,  was  held  to  l)e  void  and  against  law,  for  tliat  siicli  a 
privilege  is  contrary  to  the  lease,  being  part  of  the  tiling  demised,  iniil 
different  from  a  prescription  to  have  a  heriot  from  every  lessee  foi-  lilr, 
because  that  is  only  collateral;"''  a  case  relied  on  by  IIoi  <;hton.  .!., 
in  White  v.  Sayer,^'  in  which  he  said  the  court  had  decided  that  a  -  ns- 
tom  for  lessees  for  years  to  liave  half  a  year  after  the  end  of  tin  ir 
term  to  remove  their  utensils  was  void,  as  being  against  law;  Siniii'ji 
v.  Doderidiji','  where  the  court  refiHe<l  to  grant  a  prohibition  on  ihc 
suggestion  of  a  iikkIus  "to  i)ay  upon  request,  at  the  rate  of  two  slii - 
lings  for  every  pound  of  the  iini)roved  yearly  rent  or  value  of  the  l;i!i'l.  ' 
because  the  yearly  rent  or  value  was  variable  anr  uncertain;  Xailnr. 
qui  tarn,  v.  Scott,^  where,  a  custom  having  been  found  by  a  jury  '•  timl 
every  house-keeper  in  the  parish  of  Wakefield  having  a  child  txini  iluii 
should,  at  the  time  when  the  mother  was  churched,  or  at  the  usual  lini' 
after  her  delivery  when  she  should  be  churched,  pay  teiipeiwe  to  tli 
vicar,"  the  court,  on  amotion  in  arrest  of  judgment,  determined  Unit  \\'v 
custom  was  void,  being  (  1 )  uncertain,  because  the  usual  time  for  WMnun 


I  T.,  10  Win.  III.,  1  Lutvv.  7'.!!),  SOI. 

-  U  is  found  by  the  Bpecial  verdict,  the 
action  being  rjeitiuent. 

■■>  T.,  i;t  .lac.  I.,  Hob.  132.  Thiit  case,  if  at 
all  applicaldc,  seems  to  mo  to  nialic  for  the 
plaintilt.  It  is  <;nrloiis  in  one  nv-piMl,  viz. : 
tliat  the  question  was  brouglUon  in  an  acuon 
of  debt  ou  u  coinniou  bond,  comlilioned  for 
the  payment  of  £20  to  the  plaintiff  if  a  cer- 


tain crop  of  corn  did  of  rifjiil  beliinj;  |o  inu 
or.  in  olherwords,  if  the  questiou  of  law  m.i- 
in  iiis  favor. 

*  n.  K.,  M.,  IS)  .lac.  I.,  I'alm. -.Jll. 

^  (Mies  21  Hen.  VII.,  c.  14. 

«  U.  It.,  M.,  l!l  Jac.  I.,  I'alin.  l!ll. 

'  10.,  4  Anne,  1  Ld.  Uuyni.  lir,H;  '.'  »,ilk.  >•:>:; 
1  Modern,  GO. 

»  li.,  2  Geo.  11.,  2  Ld.  liayni.  ISOH. 


LANDLORD    AND   TENANT. 


173 


Illiisii-iitive  Cases. 


tf)  be  olinrched  was  not  alloj^ed ;  •   (2)  uureasonsible,  because  it  obliged 
tlu'  husband  to  pay  if  the  woman  was  not  churched  at  all,  or  if  she 
iiiiioved  from  the  pnri.sh,  or  died  before  the  time  of  churching;   Carle- 
iftii  V.  liriffhtweU,'^  where  the  defendant,  on  a  bill  for  tithes,  set  up  r, 
iiiodiis  that  ''  the  inhabitants  of  such  a  tenement,  with  the  lands  usually 
oiijoyed  therewith,  should  pay  such  a  sum  for  tithe  corn,"  and  it  was 
hold  by  the  Master  of  the  Rolls  to  be  void  for  uncertainty ;  Harrision  v. 
,sii'irp,'-^  where  a  modus  that  "  when  any  of  the  enclosed  pastures  in  a 
certain  vill  wore  ploughed  and  sown  with  corn  or  grain  of  any  kind,  or 
laid  for  meadow  and  mown  and  made  into  hay.  tithes  in  kind  were  paid 
to  tlio  rector,  but  when  eaten  and  depastured,  then  the  occupier  paid  to 
till'  vicar  one  shilling  in  the  i)()und  of  the  yearly  rent  or  value  tiiereof, 
and  no  more,  upon  somi'  day  after  Michaelmas,  yearly,"  was  held  void  on 
tho  authority  of  Startup  v.  Dndcrirlife;    Wilkes  v.  BrOiidbeid,'*  wliere  the 
Court  of  Common  I'leas,  and  afterwards,  on  error  brought,  the  Court  of 
King's  Bench,  held  a  custom  found  by  verdict  "  for  the  lord  of  the 
manor,  or  the  tenants  of  his  collieries  wlio  had  sunk  pits,  to  throw  the 
cartli  and  coals  on  the  land  near  such  pits,  such  land  being  custom;iry 
tciu  inent  and  part  of  the  manor,  there  to  continue,  and  to  lay  and  con- 
tiiiiio  wood  there  for  thc^  necessary  use  of  the  pits,  and  to  take  coals  so 
liii'l  away  in  carts,  and  to  burn  and  make  into  cinders  coals  laid  there,     ■ 
tlu'ir  pleasure,"   to  be  void,  because,  among  otiier  reasons,  the  word 
'near"  was  too  vague  and  uncertain;   Gland  v.  Burdojick,''  where  a 
/'(/((',  copyholder  durante  oiduUnte  having  sowed  the  land  and  then  mar- 
litil,  it  was  determined  that  the  lord  slKnild  have  the  corn,  upon  the 
piinciple   that  when   the  interest   in  land  is  determined  by  the  act  of 
tlie  iiarty,  he  shall  not  have  the  crop;   an  anonymous  case  in  Moore, ^ 
whore  it  was  held  that  a  custom  "  that  a  lessee  for  years  should  hold 
fi)r  iialf  a  year  over  his  term,"  was  bad;  Roe,  Lessee  of  Brer,  v.  Lei's,'' 
where,  in  an  ejectraiint  to  recover  a  farm  of  about  sixty  acres,  of  which 
iil'ty-one  were  enclosed  and  nine   lay  in  certain  open  fields,  a  special 
case  was  reserved,  which  stated  a  cu^toin  "  that  when  a  tenant  took  a 
I'lirm  in  which  there  was  any  open  ti'ld,  more  or  less,  for  an  uncertain 
term,  it  was  considered  as  a  holding  from  three  years  to  three  years," 
and  though  the  court  decided  against  the  custom  on  other  grounds,  yet 
liy  tlioir  reasoning  it  clearly  appeared  tliat  tliey  thought  it  void   for 
uncertainty,  because  the  quantity  of  open  ground  was  not  ascertained, 
iuil  one  rood  miglit  determine  (he  tenure  of  one  hundred  acres  of  land 


In  tliat  case  the  custom,  as  suKgested, 
iljil  iiHi  ii'fcr  lo  llii!  iisiiKe  of  the  piirish. 
-■  riiiic,  T.,  17JS,  2  I'.  Wnis.  4()'2. 

T,,  ITJI,  Uuiili.  171. 
'  I!.  U.,  K.,  18  (ieo.  II.,  1  Stru.  1234. 


■••  II,  \i.,  H.,  37  Eliz.,  Cro.  VMz.  400;  .1  Coke, 

116. 

«  H.,  \\  E(»w,  VI.,  J.  n.  Mo...  '27,  pi.  8.  t 

'  0.  II.,  M.,  l.S  Ge<).  III.,  siuoo  reported  in 

W.  mark.  1171. 


t  -. 


nil 

IP 

ill 


'■}a, 


1 


« ' 


174 


IN    DIKFKRENT    RELATIONS    AND   OCCUPATIONS. 


Wigglt'sworth  v.  DuIIison. 


oiKtlosed.  Besides  llie  above  authorities,'  the  case  before  Yates,  J., 
was  much  relied  on.  It  was  admitted  that  in  cases  where  the  usu;il 
crop  of  the  country  is  such  iliat  it  cannot  come  to  maturity  in  one  year. 
a  rij^lit  to  hold  over  after  the  end  of  tlio  term,  in  a  parol  demise,  miiv 
be  raised  b}^  impii'^alion  —  as,  where  saffron  is  cultivated  in  (Cambridge- 
shire, liquorice  near  I'ontefract,  or  tobacco,  which  formeily  used  to 
be  planted  in  Lincolnshire.  But  it  was  contended  that  in  such  cases  a 
lease  by  deed  would  |)reclude  such  implication,  as  the  parties  must  lie 
supposed  to  h:ive  described  all  the  circumstances  relative  to  the  intended 
tenure  in  the  Avritten  instrument.  Such  a  custom  as  that  set  up  in  tlic 
pi'csent  case  could  not,  it  w:;s  said,  be  of  sufficient  antiquity  with  respect 
to  leases  by  deed,  as  iu  the  time  of  Richard  I.,  and  long  afterwards, 
tenants  had  no  permanent  interest  in  their  lauds ;  or,  if  there  could  he 
such  a  custom,  the  plaintiff's  lea.se  could  not  be  within  it,  because  tiie 
custom  must  have  applicid  to  tlie  1st  of  May,  old  style,  and  this  least- 
was  made  and  commenced  after  the  alteration  was  introduced  by  2i 
Geo.  II.,  c.  2r>.2 

The  cmu't  l<)(»k  time  lo  consider,  and  this  day  Lord  Mansfield  deliv- 
ered their  opinioii,  as  follows:  — 

Lord  l\lAN.sKiKr,D.  — We  have  thought  of  this  case,  and  v,  ,>  are  all  of 
opinion  that  the  custom  is  good.  It  is  just,  for  he  who  sows  ought  to 
reap ;  and  it  is  for  the  benefit  and  encouragement  of  agriculture.  It  is 
indeed  agaiii>t  the  general  rule  of  l.nw  concerning  emblements,  wliicb  are 
not  allowed  to  tenants  who  know  wlien  their  term  is  to  cease,  b(!cause  it 
is  held  to  be  their  fault  or  folly  to  iiave  sown  wlien  they  knew  their 
interest  would  expire  before  they  could  rcap.^  Hut  the  custom  of  a 
particular  jilaoe  may  rectify  what  otiierwise  would  be  imprudciuee  or 
folly.  The  lease  being  by  deed  does  not  vary  the  case.  The  custom 
does  not  alter  or  contradict  the  agi-eement  in  the  lease ;  it  only  super- 
adds a  riglit  which  is  consecpiential  to  tlie  taking,  as  a  iieriot  may  be  due 
by  custtMH,  although  not  mentioned  in  the  grant  or  lease.* 

The  rule  dm'lurnjexO 


'  4  Coke,  51  b;  1  Roll.  Abv.  .WS,  pi.  9,  and 
Co.  I, it.  .V),  were  also  citud  for  the  general 
|)rinc,i|)leH  concerning  cuKtoms  itad  euible- 
mollis. 

'J  The  new  s'.jle  coiriiucnced  the  1st  of 
January,  1"5;{.  Hut  if  this  argiini(U)t  were 
adniilleil  in  its  full  extent,  no  custom  could 
exist  where  a  certain  day  of  the  month 
made  part  of  it,  as  from  the  errors  in  the 
former  iiHithoii  of  t'onipulation  the  nominal 
day  was  continually  deviating,  by  dvgreeH, 
froni  the  natural  day. 

!<  See  14  &  15  Vict.,  c.  25,  $  1,  giving  the 
tenant,  in  lieu   of  t-mblemcntn,  a  right  to 


occupy  until  the  end  of  the  current  year  of 
his  tenancy. 

■•  Vide.  Doe  v.  Snowden,C.  B.,  M.,  19  Geo. 
III.,  W.  Black.  12'2.">,  where  it  is  said  Ly  the 
court  that  if  there  is  a  taking'  fniin  ^M 
Ladyday  (Aiiril  5),  the  custom  of  most 
countries  would  entitle  the  lessee  to  tiiiter 
upon  the  arable  at  Oaudlentas  (F('lini:iiy2\ 
to  prepare  for  the  Lent  corn,  without  any 
special  words  for  that  purpose  — i.e.,  in  a 
written  agreement  for  seven  year.s,  for  the 
court  were  speaking  of  such  an  agrcuinont, 

''  Judgment  was  accordingly  entered  for 
the  plaintiff,  upon  wliiih  a  writ  of  error  whs 


>  - 1 « I 


MASTER   AND   SERVANT. 


175 


Illustrative  Cases. 


17.   MASTER    AND 


SERVANT  — USAGE    AS 
SERVICE. 


REGULATING    TERM     OF 


in- 


HoLCIIOKT    V.   BaRI$ER.* 

Bffore  Wightman,  J.,  in  the  English  Court  of  Qupcn'n  Bpuch.  Triniht 

Term,  1848. 


In  an  action  for  wronfffuUy  dismissing  the  editor  of  a  newspaper,  the  deelaration  stated 
that  he  was  engaged  for  a  year.  There  was  no  dirert  evidence  as  to  ihc  time  lor  which 
he  wiis  engaged.  Held,  that  he  might  show  that  it  was  customary  for  cditDrs  of  news- 
papers to  be  engaged  for  a  year  unless  there  was  an  express  slipul.iiKin  to  the  contrary. 

AssuMRsiT.  Tho  declaration  stated  tliat  on  tin-  first  day  of  January, 
1812,  "  in  oonsi<lt'ration  tliat  tin'  plaintiff,  at  tiic  reqin'st  of  the  defend- 
ants, would  enter  into  the  employ  of  the  dtifendants  in  tlic  ea{)acity  of 
editor  of  a  certain  periodical,  publication,  or  nt'wspajnr.  called  the 
Monthly  Times,  for  a  certain  time,  to  wit,  for  one  whole  year,  cora- 
nu'iieing,  to  wit,  on  the  day  and  year  aforesaid,  at  atnl  foi-  a  (certain 
siilary  and  waives,  to  wit,  £10  per  month,"  the  (h'fendaiits  jjromised 
the  plaintiff  to  retain  and  employ  him  in  the  capaeily  aforesaid,  at  and 
for  the  salary  and  wacjes  aforesaid,  and  to  eontiinie  him  in  such  emph>y 
for  the  said  time,  to  wit,  for  one  whole  year,  eomnienciiijr.  to  wit,  on  the 
(lay  and  year  aforesaid ;  and  althoujih  the  jilisintiff,  confidinfj,  etc.,  did 
iifh^rwards  enter  into  the  employ  of  the  defendants,  '•  in  the  capaeily 
aforesaid,"  yet  the  defendants  wron<^f ally  dismissed  him  within  the  year. 
Plea:  No7i  nanmnpserunt. 

It  appeared  that  in  the  month  of  December,  1841.  the  defendants 
wore  al)out  to  commence  the  publication  of  a  newsi>aper  called  the 
Mnnlhhj  Times,  which  was  to  be  printed  in  London  oiK-e  a  month,  and 
sent  to  India;  and  that  the  plaintiff  wrote  the  leading  articles  of  the 
paper  from  the  month  of  January.  1842,  to  the  month  of  June  in  the 
same  year,  both  inclusive,  for  which  he  was  paid  £10  for  each  month. 

It  appeared  from  the  evidence  of  Mr.  Kelly,  the  printer  of  the  paper, 
that  Mr.  Stephenson  was  the  person  who  had  the  management  of  the 
paper;  and  he  stattid  that  Mr.  Steplienson  was  the  editor  of  it,  and  had 
on  one  occasion  rejected  a  part  of  a  leading  article  which  had  been 

*  Reported  1  Car.  &  Kir.  4. 


brought  in  the  Exchequer  (Miamber,  and  the 
liefeiiilant  assigneil  for  error  "  that  the  cus- 
tom contained  and  set  forth,  etc.,  is  a  custom 
void  in  law,  and  in  contrary  to  and  incon- 
sistent with  the  said  indenture  of  lease  in 
the  said  replication  mentioned."  The  case 
was  argued  at  SergeantB'  Inn  before  tho 
judges  of  Common  Hench  and  the  barons  of 


the  Kxchequer,  by  Tlalgny  for  the  plaintiff 
in  error,  and  ("hainbrc  for  the  defendant. 
Tlie  objection  to  the  reasonableness  of  the 
custom  was  abandoned.  In  T.,2l  Geo.  III. 
(Junn  27,  1781),  Lord  Loughborough  deliv- 
ered the  unanimous  opinion  of  the  Court  of 
Kxcliti(|uer  (Miamber  that  the  custom  waa 
good,  and  the  judgment  was  aflirmed. 


Ill 


m 


.     V 


iS,   ii 


■11 


1  ; 


Ir 


f;r 


I: 

I 


i 


1 

B"  '■ 

t 

i 

■j 

1    V  «^ 

■  s        '  ■    ' 

i 

1 

uh 

1 
It 

i 

>-i| 


176 


IN    DIFFKRKNT    UKLATIONH    AND    OCrUPATIOXS. 


Holt-roft  I'.  Barber. 


■vvritU'ii  by  tlio  phiiiifilT.  With  icspoot  to  the  engagement  of  the  pliiiu- 
tilT  heing  for  a  year  tliere  was  no  (liicc-t  evidenee  except  the  folhi\viii<f 
letter,  written  by  Mr.  Stephenson  to  the  phiiiitiff:  — 

••S.vn  i;i).\Y,  Dee.  11.  1H41. 

"  My  Dkak  rioi.ciiOKT:  Can  you,  without  mucli  trouble,  looi<  in  on 
Monday  at  11  or  12?  It  is  too  long  to  write  about,  but  refers  to  ;iii- 
other  opening  for  your  putting  about  £120  a  year  additional  into  ynuv 
pocket.     Ever  sincerely  yours,  K.  Machonald  Stkphknson. 

"  P.  S.  —  Legitimate  business,  and  not  speculation  !  ! !  " 

A  letter  (without  date)  of  the  det'endant  Barber  to  the  plaintiff  was 
also  put  in.  It  contained  the  following  passages:  "We  regret  to  s:iy 
that  the  last  mail  does  not  bring  us  satisfactory  account  of  our  spec,  as 
icgards  the  Monfhhf  Times,  and  we  are  therefore  consti'ained  to  forced 
the  monthly  summaries  for  which  we  have  been  indebted  to  your  gooii 
offices.  *  *  *  We  ^xre  desired  to  express  the  proprietor's  full  ap- 
probation of  the  style  and  matter  which  your  pen  has  furnished." 

Pldtt,  for  the  plaintiff,  proposed  to  call  witnesses  to  show  that  there 
was  a  cust(^m  that  editors,  sub-editors,  and  rep)rters  of  newspapers  wi  re 
engaged  for  a  year  unless  it  is  otherwise  expressed  at  the  time  of  makiiij; 
the  engagement. 

Croirder,  for  the  defendants. — I  submit  that  the  evidence  is  not 
receivable.  Tliis  is  a  matter  of  contract  only,  and  not  a  matter  of 
custcmi,  any  more  than  luring  a  groom.  One  master  may  hire  his  ser- 
vants on  certain  terms,  and  another  upon  (juite  different  terms,  just  ;is 
they  may  agree  with  their  servants. 

Piatt.  —  In  the  case  of  a  groom,  the  usage  is  a  month's  wages  or  a 
month's  warning.     J^vidence  of  usage  always  htis  been  received. 

WiGirr.MAN,  J.  — Y(Mi  may  go  into  evidence  to  show  a  custom. 

Mr.  Powell  was  calle<l.  He  said  the  custom  is  that  the  engagements 
of  editors,  sub-editors,  and  reporters  upon  newspapers  are  aimual  unless 
expressly  stated  to  be  otherwise. 

WiGHTM AN,  J.  —  Does  your  custom  apply  to  contributors,  who  are 
neither  etlitors,  sub-editors,  or  rei)orters'r' 

Mr.  l*owell. — To  persons  engaged  to  regularly  supply  the  lending 
articles. 

Wir.nTMAN,  J. — Then  it.  stands  thus:  that  engagements  of  editors, 
sub-editors,  rei)orters  of  newspapers,  and  persons  who  are  engaiied  to 
legularly  supply  the  leading  articles  of  news|)apers,  are  for  a  year  unlcHx 
otherwise  ex[)re8sed.  That  would  be  so  in  the  case  <*f  a  clerk  or  soi- 
vant. 

This  custom  was  also  deposed  to  by  Mv.  James  Woods  and  Mr.  Knox, 


li! 


MASTER   AND   SERVANT. 


177 


Illu.stnitive  Cases. 


who  had  both  of  them  been  many  yetirs  connected  with  newspapers  ;  but 
none  of  the  witnesses  knew  of  any  instance  of  the  custom  being  applied 
U)  a  newspaper  which  came  out  once  a  month.  They  also  stated  that 
the  i)erson  who  wrote  the  leading  articles  they  should  consider  as  the 
editor  of  a  newspaper,  and  that  the  person  who  had  the  management  of 
the  paper  they  should  rather  consider  as  a  sub-editor ;  but  that  on  many 
publications  —  particularly  on  the  great  London  newspapers  —  there 
were  several  persons  who  were  editors,  and  who  took  different  portions 
of  the  editorship,  and  that  therefore,  in  su(!h  cases,  no  one  person  W(juld 
be  considered  as  the  editor. 

Crowder,  for  the  delcudants,  addressed  tlie  Jury,  and  submitted,  first, 
that  the  plaintiff  was  not  engaged  by  the  defendants  "in  the  capacity 
of  editor,"  as  stated  in  the  <loclaration ;  and,  secondly,  that  the  custom 
deposed  to  by  the  witnesses  as  to  the  engagements  of  editors,  sub- 
editors, and  reporters  did  not  apply  to  a  paper  published  once  a  montli 
to  be  sent  abroad,  this  being  a  new  species  of  paper,  published  on  spec- 
ulation, and  not  a  newspaper  on  which  the  engagements  would  be 
permanent. 

WiGHTMAN,  J.  (in  summing  up). — There  are  two  questions  in  this 
case:  First,  did  the  defendants  engage  the  plaintiff  as  the  editor  of  tliis 
putjlication?  for  if  the  plaintiff  was  not  engaged  as  the  editor,  he  must 
fail  in  this  action,  as  he  is  described  in  the  dechuation  as  having  been 
80  engaged ;  and,  secondly,  if  he  was  engugfd  as  the  editor,  was  he 
engaged  for  a  year  by  express  words,  or  by  any  custom  which  prevails 
in  the  business,  though  nothing  was  said  in  express  words  as  to  the 
duration  of  the  engagement?  On  the  first  point,  Mr.  Kelly,  the  printer, 
says  that  Mr.  Stephenson  was  the  editor;  and  he  also  st:itos  that  Mr. 
Stephenson  had  the  management  of  the  paper,  and  rejected  a  part  of 
one  of  the  plaintiff's  articles.  There  is  no  doubt  that  the  plaintiff  was 
a  contributor  to  the  paper,  and  that  lie  wrote  the  leading  articles,  sub- 
ject, as  api)ear3  in  that  instance,  to  the  control  of  IVIr.  Stephenson. 
There  are  several  witnesses  who  state  that  they  consider  that  tlie  piain- 
til'f  was  the  editor,  notwithstanding  this,  and  that  Mr.  Stephenson  was 
rather  the  sub-editor ;  but  it  is  difficult  to  reconcile  this  with  the  state- 
ment that  Mr.  Stephenson  had  the  power  of  rejecting  the  articles  written 
by  thi',  plaintiff  ;  and  you  iiave  the  direct  testimony  of  Mr.  Kelly  that  Mr. 
Stephenson  was  the  editor,  and  the  fact  that  in  no  part  of  the  corre- 
spondence is  the  plaintiff  spoken  of  as  the  editor.  If  you  think  that 
the  plaintiff  was  not  the  editor,  and  did  not  fdl  the  situation  designated 
in  the  declaration,  your  viu-dict  should  be  for  the  defendants ;  but  if 

you  think  that  the  plaintiff  did  fill  the  situation  mentioned  in  the  decla- 

la 


i 


f     f 


Iji 


ill 


■::l 


i  I 


I  ■'! 


i ; 


11 


U 


I 


%  ■  !     ;' 


H   It^ 


a  ? 


iis 


J!  ) 


i^i       . 


i  ■  1 


i  :'- 


^m  1 


178 


IN     DIFFEKKNT    KKLATION8    A^D    OCCUPATIONS. 


Waring  v.  (irady. 


ration,  yon  will  tlicii  coiisidcr  whfthcr  there  was  an  engaf^einent  fo:  .« 
year.  The  paper  caiiie  out  once  a  month,  and  the  plaintiff  was  paid  flO 
per  article,  and  the  letter  of  Mr.  Ste|then.son  speaks  of  its  beincf  a''  mI 
£J2()  a  year;  lint  as  twelve  articles  at  £10  each  would  he  £120  a  \iai. 
tiiis  does  n<jt  necH'ssarily  show  that  the  enjjagenient  was  for  a  year. 
This  hriuirs  ns  to  evidence  of  the  custom,  and  on  this  part  of  the  casi'  it, 
is  pruviiil  by  a  number  of  irentlemen  who  have  been  em})loye(l  botii  its 
editors  and  sub-editors  that  the  (ujstoni  is.  that  a  person  who  is  upon 
the  regular  emi)!oy  of  the  newspaper  press  is  employed  for  a  year  iiiil('s,« 
it  be  otherwise  expressed;  but  there  seems  to  be  some  doubt  whet  her 
tliat  custom  a])i>!ies  to  a  paper  like  the  present,  as  this  is  tiie  rallicr 
anomalous  ctise  of  a  pap(!r  published  only  once  a  month,  and  to  be  sent 
to  India  as  a  sort  of  spt'cailation,  for  we  find  the  word  "  spec."  is  used 
in  one  of  tlie  letters.  The  witnesses,  however,  all  agree  that  it  is  nut 
so  mud)  wiiether  the  person  is  called  editor,  sub-editor,  or  reporter,  hut 
that  if  the  person  he  jiermanently  employed  (not  occasionally  only)  In 
supply  a  particular  dei)artment  of  a  newspaper, — as,  for  instance,  i he 
leading  article,  or  reports  of  the  Parliamentary  debates,  —  and  no  iiKirc 
be  said,  tliat  is  an  engagement  for  a  year ;  and  if  the  engagement  be  I'l  r 
a  year,  tiiut  engagement  is  reciprocally  binding  on  both  parties.  You  will 
first  say  whether  the  plaintiff  was  engaged  as  the  editor  of  the  paper,  as 
stated  in  the  declaration;  and  if  he  was,  you  will  then  say  whetiiei-,  l)v 
the  custom,  a  person  who  is  so  employed  is  engaged  for  a  year  unless  it 
be  otherwise  expressed. 

Verdict  for  tlie  defendants,  the  foreman  of  the  jury  adding,  "  We  do 
not  consider  that  Mr.  Holcroft  was  the  e<litor." 

Verdict  for  the  defendants. 


18.    PARTNIOUSIIIP  — POWER    OF    PAUT>fBR    MAY    BE    ENLARGED    BY 

USAGE. 

Waring  v.  Grady.* 
In  the  Supreme  Court  of  Alabama,  Jmip  Term,  1873. 


Hon.  Thomas  M.  Pktkrs,  Chief  Justice. 
'«    Bknjamin  F.  Sakkom),  , 
'*    robbrt  c.  buickeij 


It  is  the  custom  on  ttie  Alabama  River  for  the  proprietors  of  steamboats  to  purchase  salt  (it 
Mobile,  to  be  carried  up  the  river  and  sold.    Held,  that,  in  the  absence  of  a  contrarj 

*  Reported  49  Ala.  465;  20  Am.  Rep.  286. 


II 


■\l 


rDAVKltS    OF    PARTNERS. 


Illustrative  Cases. 


Btipnlntion  in  ii  purtiuM-Hhip  iiKriJcmunt  inadi!  for  tho  purpose  of  nimiiiiK  it  Klt'aml i 

on  that  river,  the  linn  woulil  bo  liable  for  salt  purdiaMcd  by  a  partner  at  Mobile  foi 
transportation  and  sale  on  the  bout. 

Action  by  the  firm  of  Wiinii<.>'  &  Son  at^ainst  P.  A.  Grady  and  J(jlni 
,1.  Moiilton,  upon  an  account.      If  was  allc^i'd  in  tlio  complaint  I  hat  tln' 
defendants  were  copartners  and  Joint  owners  in   the  ste:iml)oat.    Hlacl% 
Diamond,  and  in  tlie  frtu<fht  tiiereof,  and  tliat  deiciiidants  were  :ndei)ted 
til  plaintiffs  for  two  huiuh'ed  sa(;ks  of  salt  delivered  to  defendants  as 
fi'oij^ht   of    such    boat.      In  support   of    these    alIe<5ations,   whi(!ii  were 
denied,  the  plaintiffs  at  trial  j^ave  evidence,  which  was  unconti'adi<;t('il. 
to  show  that  defendants  were  joint  owners  of  the  boat  mentioned  ;   that 
it  w:is  run  by  defendants  from  Mobile  upon  the  Alali;iina  and  Tornl)iirl)ee 
Rivers,  for  freij^ht  and  passen<i;ers ;  that  tiie  pnjlils  and  losses  arisini^  in 
such  einployiiKMit  weie  divided  between  defendants  ;   that  it  was,  .-uid  had 
be(\n  for  many  years,  the  common  practice  in  thai  trade,  when  the  ordi- 
nary freight  was  scarce,  and  therefore  deeune  I  advantageous  tn  itujrease 
tiie  freights  of  the  boat,  to  |)urchase  salt  at  Mobile  to  be  carri<'d  up  the 
river  and  sold,  or  e\'change(l  for  wood  or  expenses ;  and  that  this  usage 
of  the  trade  was  deemed  good  economy,  and  was  re(!ognized  and  known 
to  all  the  steamboatmen,  nu'rchants,  and  others,  aiui  to  owners  engaged 
in  said  trade,  and  was  considered  within  the  scope  of  said  business; 
and  that  this  was  also  often  done  when  no  regular  freight  was  offering. 
to  raise  money  to  pay  the  expenses  of  the  u|)  trip,  to  be  repaid  out  of 
the  profits  of  the  down  trip ;  and  that  it  was,  and  is  now,  the  cvcry-day 
practice  for  owners  and  masters  in  charge  of  steamboats  to  make  such 
jmroliase  on  account  of   the   boat   and  owners,  foi-  the  benefit  of  the 
vessel  and  to  increase  or  make  up  profits.     The  plaintiffs  delivered  salt, 
at  the  reipiest  of  Moulton,  for  such  use  on  the  boat  named,  which  they 
charged  to  the  boat  and  its  owners.     The  defence  set  up  by  Grady,  and 
established  by  evidence,  was  that  he  had  no  knowledge  of  the  purchase 
of  the  salt,  and  did  not  assent  to  it,  and  that  the  salt  was  sold  for  said 
Moidton's  benefit. 

The  court  charged  that  unless  Grady  was  aware  of  the  purchase,  oi' 
authorized  or  assented  to  it,  he  would  not  be  liable  for  the  salt,  and 
refused  to  charge  that  the  custom  proved  affected  the  partnership  C(jn- 
traet.     The  plaintiffs  appealed. 

Bojilen  &  Owrall  and  George.  N.  Stewart,  for  the  appellants ;  D.  C. 
Anderson,  for  tho  respondent. 

Pktkrs,  C.  J.  —  A  partnership  is  created  by  an  agreement  of  the 
parties  who  constitute  it,  and  it  may  be  entered  into  with  reference  to  a 
'Hstora  or  usage  of  the  place  where  its  business  is  to  be  transacted.     If 


Hill 

1       •  >  ^ 

i  1 

ill 


:    ')i 


.'•i 


W  .' 


r  v\ 


iiiil-! 


i. 


■  :>  ^ 


J.Ti. 


ISO 


IN    DltTKUKNT    KKLATIONS    AND    OCCtll'ATIONH. 


G<io(U«now  V.  Tyler. 


this  ciislom  is  a  louftil  one,  nnd  such  as  the  law  will  enforce,  il  ihmv 
modify  the  legal  effect  of  tlie  piirtnerHliip  aii^reeinent ;  and  such  a  ciss- 
tom  may  be  shown,  in  connection  witli  the  contract,  to  estal)Iish  the 
intention  of  tiu;  parties  in  entering-  into  it,  for  such  a  custom  lu'i-omcs  ;i 
part  of  tlie  contract  itself,  and  explains  its  stipulations.'  This  doclriiio. 
appliiul  to  this  case,  very  clearly  sIioavs  tiiat  the  cl>ar<ifo  asked  hy  the 
plaintiffs  below  ought  to  luive  been  given  to  the  jury.  This  charge  was 
not  abstract,  but  was  fully  support(^d  by  the  evidence,  which  was  wiiolly 
uncontradicted.  It  was  asked  in  writing,  and  it  contains  a  fair  state- 
ment of  a  legal  proposition  api)!i('able  to  the  issues  submitted  to  the 
jury.     The  court  erred  in  refusing  to  give  it. 

The  charges  given  by  the  court  was  also  incorrect,  and  was  calculated 
to  mislead  the  jury.  It  had  the  effect  to  withdraw  from  their  consider- 
ation all  that  part  of  the  evidence  which  tended  to  establish  the  custom 
or  usage  which  modi(i(!d  the  legal  effect  of  the  partnership  agrcciiu'Dt 
in  reference  to  the  purchase  of  the  salt.  Such  a  charge  cannot  be  sus- 
tained.- If  the  obligations  of  the  partnci'ship  were  modified  by  the 
usage  atteinpt(?d  to  be  proven,  of  which  the  jury  must  judge,  then  the 
contract  of  partnership  permitted  the  salt  to  be  purchased.  What  this 
contract  permitted  was  within  the  scope  of  the  business  in  which  tlie 
firm  was  engaged ;  and  within  tliis  scope  or  limit  the  act  of  one  partner 
is  the  act  of  all,  and  binds  all.''  If  a  partner  wishes  to  protect  himself 
against  such  a  usage,  the  partnership  agreement  should  be  so  framed  iis 
to  do  this,  or  he  should  give  notice  of  a  dissent.'*  The  judgment  of 
the  court  below  is  reversed,  and  the  cause  is  remanded  for  a  new  trial. 

Jud<i7)u'iit  reversed. 


19.     PRINCIPAL   AND    AG KNT  — USAGE    GOVERNS    AGENT'S    POWERS, 

GooDKNOW  V.  Tyler.* 


///  the  Supreme  Jndieidl  C'oirrf  of  MassachuHeUs,  September  T' 


dJ. 


Ilim.  TnK,oi'HiL"s  Paksoxs,  Ctiicf  Justice, 

"      THICOUOKR    SKDliWlCK,  \ 

•'     Samubl  Skwall,  \  Justices. 

"     Isaac  Pakkkk,  ) 

T.,  a  factor,  having  goods  consigiiucl  to  him  by  G.,  sold  them  on  throe  months'  credit,  l/iKiti;,' 
ill  payiueut  the  purchaser'.-;  i)romis.s()ry  note  to  liim.sulf;  but  the  purchaser,  licime  ilie 

♦  Reported  7  Mass.  86 ;  5  Am.  Dec.  22. 

'  Sampson  v.  Gnzzam,  6  Port.  1215 ;    Mills  •'  3  Kent's  Comm.  40,  41;   1  Pars,  on  Con. 

V.  Inited  States  Itanli,!!  Wheat.  4;U;  Cutter       174,  175,  and  cases  there  cited. 
r.  I'owell,  6  Term  Hep.  S20.  «  27  Ala.  246. 

•  29  Ala.  188;  24  Ala.  (mi;  23  Ala.  17;   22 
Al!i..'>01,796. 


PRIM^H'AL    AND    AOKNT. 


I  SI 


lllustrutive  (.'uses. 


muliirity  of  thu  note,  bociiiiie  bunknipt.  In  an  uctioii  liy  (i.  .'iK.'iinsi  T.  fur  tlit;  valiii'  i>f 
the  rooUh  Hold:  held,  lti:\t  cvidi'iice  Ihnt  Ik;  liiul  ai'tcil  Mi'i'iiriliii);  to  the  ciistiiiii  of  IIh- 
placu  was  adinisHibli;,  and  would  dischaixi!  Iiiin  from  liiibilily. 

Action  agiiiiist  tho  (1(;f(Mi<l:iut  to  I'ticovcr  tlic  \;i!iu'  of  a  pipe  of  ^in. 
the  property  of  the  pl:iiutiff,  sold  by  tlu-  (lcfcii(l:int  :is  fsictor  for  the 
plaintiff.  It  appe!Ut;d  tiiat  dcfciulant  had  titkcii  tlu'  prdiiiissory  note  of 
tiio  purchaser  of  the  gin  in  payment  tliciefor.  and  tliat  before  tiie 
luatiirity  of  the  note  the  maker  became  bankrupt;  that  pl.ii)itilf  oave  no 
orders  whether  to  sell  for  cash  or  on  credit;  iind  that  it  was  tlie  custom 
in  Boston,  where  liie  sale  was  (iffected,  for  factors  to  sell  on  credit  at 
the  risk  of  their  principals,  uidt:ss  an  additional  premium  was  allowed 
for  taking  the  risk  \i\H)n  themselves.  Evidence;  to  prove  that  it  was  cus- 
tomary to  take  promissory  notes  where  credit  had  liecn  given  by  tiic 
factor  was  rejected.  The  judge  dinicted  a  verdi(!t  for  tlu;  plaintiff  for 
tile  value  of  the  gin,  after  deducting  the  amount  of  defendant's  c(jmi- 
missions,  because  the  factor  had  received  a  negoiiablc  note  in  payment. 
A  motion  for  a  new  trial  was  then  made,  on  the  gicnuid  of  misdirecti<;n 
of  the  judge. 

Jh'ijclow,  in  support  of  the  motion. 

Lincoln,  contra,  contended  that  the  factor,  having  had  no  instnu-tiona 
to  sell  on  credit,  was,  innnediately  upon  the  sale,  chargcal)!*;  with  the 
vuUk  of  the  goods,  as  the  negotiable  promissory  note  taken  was  pay- 
ment; '  and  that  an  action  for  money  had  and  received  was  the  proper 
rcMiu'dy.^ 

Pakkkk,  J. — The  plaintiff  would  insist  that  a  factor,  under  the  cir- 
(MinistaiHics  of  this  case,  had  no  authority  to  trust  the  pur(;haser,  and 
liiat,  having  so  done;,  he  became  immediately  chargeable  to  the  principal 
for  the  price,  liut  the  law-merchant  clearly  contradicts  this  principli", 
it  in  ing  well  settled  that  a  fa(;tor  may  sell  upon  credit  without  tiiking 
iipi  II  himself  the  debt,  unless  he  is  restricted  from  so  d<nng  l)y  llie 
onhrs  of  his  principal.  And  this  principle  is  reasonable,  and  for  the 
henoiit  of  those  who  simd  their  goods  to  market;  for  otherwise  they 
would  be  frecpiently  soi  I  at  a  sacrilice,  or  remain  unsold  at  the  e\pi  use 
of  tiic  owner. 

Hut  even  if  this  were  not  settled  law,  it  is  very  clear  that  tlic  ii^a^c 
of  the  mai  t  where  the  goods  are  sold  would  bind  the  owner,  for  he 
is  presumed  to  be  conusant  of  that  usage;  and  if  he  is  silent  in  his 
directions  to  his  factor  as  to  the  terms  of  the  sale,  he  is  consideicd  as 
iuteiuling  to  be  governinl  by  the  usage.     Then,  if  the  factor  had  authoi- 


'  4T?a('.  Ai    ,,  til. 
'in,  UK);  BuLst.  101. 


'  Merc.hiint,"  B;  'i  Mod- 


"  Barclay  c.  (iooeli,  2  Ewp.  571. 


itilili 


;  ' 


1  I 


if* 


1  a. 


i    ; 


ili 


if'lW 


I  -'i 


IWr 


182 


IN    DIFFKKKNT    RELATIONS    AND    OCCUPATIONS. 


Goodonow  v.  Tyler. 


ity  in  this  case  to  sell  on  credit  at  the  risk  of  his  principal,  there  1»ein<r 
110  complaint  of  neglii^ence,  carclessiii'SH,  or  want  of  skill  in  niakinj^-  his 
barjrain,  either  of  which  mi.u;ht  have  made  him  liable  to  the  owut 
notwithstanding  liis  general  autliority,  the  question  ari^e*  wliethc!  tin- 
mode  in  which  the  defendant  gave  the  credit  in  this  case  hjis  fixed  tlio 
del)t  upon  him.  A  promissory  negotiable  note,  payable  to  himself.  w!i.s 
taken;  and  this  is  the  {)oint  upon  which  the  judge  at  the  trial  thought 
the  liability  of  the  defendant  rested.  But  I  do  not  see  why  this  should 
cliange  the  nature  of  the  case. 

The  relation  between  the  principal  and  factor  remains  the  same  as  if 
tiie  factor  had  tnken  a  note  not  negotiai»le,  or  had  charged  the  article 
sold  in  his  bookatu'  had  made  the  purchaser  delttor  to  himself ,  which  he 
certainly  might  ha  ';  lone,  keeping  an  account  at  the  same  time  between 
himself  and  the  prin'.-ipal.  That  the  note  was  negoti:)')le  was  favorable 
to  the  principal,  because  it  could  easily  be  assigned  1»y  tlie  factor  to 
him.  It  is  considered  by  the  law  as  taken  in  trust  for  the  prineinnl; 
and  if  the  factor  should  refuse  to  assign  it  on  demand,  doubtless  he 
would  be  liable  in  an  action  by  the  principal. 

It  is  s'lid  tliat  a  negotial)le  note  given  for  the  amount  of  an  account 
for  goods  sold  discharges  the  original  contract.  This  is  true,  as  settled 
in  this  Coinmonwealth,  between  the  vendor  and  vendee;  but  it  surely 
does  not  follow  that  because  the  factor  has  changed  an  account  on  his 
book  into  the  more  simple  and  convenient  evidence  of  debt,  a  note  of 
hand,  that  for  this  cause  only  he  lias  burdened  himself  with  a  debt  for 
which  he  received  no  consideration. 

1  am,  therefore,  of  o))inion  that  there  ough-   to  be  a  new  trial. 

Skwall,  J.  —  If  I  was  satisfied  that,  upon  established  principles,  a 
factor  who  sells  the  goods  of  h.is  i)rincipal  upon  cr(!dil  and  receivew  a 
promissory  note  for  the  jimount  of  the  sales,  p.iyable  to  himself  and 
negotiable,  became  thereby  inimediately  accountable  as  if  he  had  sold 
for  money,  I  should  think  a  new  trial  ought  not  to  be  granted.  But  I  am 
not  ssiiisfied  that  this  is  the  law.  I  think  the  rule  in  this  respect  iniisf, 
depend  upon  the  p:iiti(Mdar  us:iges  of  commission  merchants,  and  thai 
the  law  u|)on  this  subject  as  to  the  authority  of  tlie  factor  and  the 
extent  of  his  liability  is  refi'rable  to  known  and  established  iisaii's, 
where  the  parties  rely  altogether  upoti  the  general  relation  and  implied 
duty  of  a  jpcrchaiit  and  fnctor,  no  directions  or  agreement  having  been 
expressed  1  etween  them  or  proved  in  the  case. 

I  think  usage  is  competent  evifU'nci',  in  a  case  of  this  nature,  to  slutw 
the  imi)lied  ititenti(»ns  nnd  tniderstanding  of  the  parties.  As  evidence 
to  the  effect  of  proving  :i   usage  of  selling  upon  credit,  and  of  taking 


PRINCIPAL    AND   AGENT. 


.s;} 


Illustrative  Cases. 


iu'<>;()tiable  promissory  notes  payable  to  the  coinmissioii  nn'ichant,  was 
(illVred  in  this  case  and  rejected  at  the  trial,  I  think  then'  ought  to  be 
,1  new  trial,  leaving  it  for  tiie  present  undoterniitiod  how  far  the  usaoe 
.!11  justi^'y  the  conduct  of  the  defenda»»t  in  the  case  at  bar.  It  is  very 
iM  rtain  that  no  usage  can  justify  the  defendant  in  any  wilful  negligence 
in  si.'curing  the  property  of  his  principal;  and  if  his  conduct  has  been 
siuh  as  to  show  tliat  he  had  received  and  treated  the  note  given  for  the 
uiii  as  his  own  demand,  he  may  be  liable,  notwithstanding  a,  usage  to 
»:  II  upon  credit  and  to  take  notes  in  payment  should  be  I'nily  proved. 
I'ausons,  C.  J.,  stated  the  nature  of  the  action  and  the  substance 
of  tiie  judge's  report,  and  proceeded:  Without  considering  hov.  far 
tin;  evidence  comports  with  the  declaration,  which  point  is  not  before 
us  on  the  report,  I  shall  confine  my  opinion  to  the  direction  of  the 
ju'lge. 

The  court  will  take  notice,  as  a  part  of  the  law-merchant,  that  a  fac- 
tor may  sell  goods  at  a  reasonable  credit,  at  the  risk  of  his  principal, 
when  he  is  not  restrained  by  his  instructions  nor  by  the  usage  of  the 
trade.  He  is  not,  however,  authorized  to  give  credit  to  any  but  persona 
ill  good  credit,  and  whom  prudent  people  would  trust  with  their  own 
goods.  If,  througli  carelessness  or  want  of  reasonable  inquiry,  he  sell 
on  credit  to  a  man  not  in  good  credit,  and  there  be  a  loss,  the  factor 
iiuisl  bear  it. 

When  a  factor  sells  on  credit,  he  may  take  from  the  purchaser  some 
instrument  by  which  the  purchasi;  may  appear,  with  the  price  and  the 
time  of  payment,  and  on  which  the  purchaser  may  be  oliarged  in  an 
iictioii  at  law.  And  it  Is  very  clear  that  he  is  not  obliged  to  disclose 
to  the  purchaser  the  name  of  his  principal,  or  even  to  state  to  him  that 
he  soils  as  factor.  Upon  these  principles  he  may  take  a  promissory  note 
|i:iyiil)le  to  himself ;  and  when  the  principal  lives  in  a  foreign  country,  it 
Muiy  he  most  convenient  for  him  to  have  the  security  payable  to  liimself , 
so  that  he  may  sue  it  in  his  own  name.  When  the  security  is  in  the 
name  of  the  factor,  he  holds  it  in  trust  for  his  [)rincipal.  If  the  prin- 
<il);il  domand  it,  offering  to  pay  the  commission,  and  the  factor  reiiise 
to  as>igii  it,  he  then  becomes  answerable  for  the  money.  So,  if  the 
Mioin'v  l)e  lost  by  his  negligence  in  not  seasonably  demanding  it,  the 
lactor  is  responsible  for  bis  negligence. 

rpnn  these  princii)les,  it  sevms  very  clear  that  in  this  case,  if  (lie 
dclt'udant  had  taken  a  note  to  himself,  not  negotiable,  tosecuie  the  pay- 
iiioiil  of  the  money,  he  would  hiive  been  a  trustee  of  such  note  for  the 
I'laiiiiiff ;  and  if  the  money  could  not  be  recovered,  without  any  laches 
oil  the  part  of  the  defendant,  he  would  in  law  be  discharged.     But  in 


;'  i 

V. 

l!  f 


J 
1 

-  •  J. 

1  ■ 
1  - 

*        ^ '    ■' 

% 

i                  ' 

\^: 

\m 

.     \': 


'*,  mi 


184 


IN    DIFFERENT    RELATIONS    AND   OCCUPATIONS. 


Goodciiow  ».  Tvler. 


this  case  tlio  defendant  took  as  security  a  noirotiable  note  *  i  liis  own 
name.     And  it  is  said  that  such  note  is  payment  by  which  the  pur- 
chaser is   dis(;l»arg('d    from    the  principal,    and   consequently  tlial    tlio 
defendant  assumed  the  debt  on  hims,(>lf,  and  is  at  all  events  aiiswci'- 
able.     It  must  be  admitted  that  in  tliis  case  it  has  been  settled  liy  a 
series  of  decisions  wliich  can  be  traced  bacl<  sixty  years,  that  where  a 
nej>otiable  note  is  given  to  secure  the  payment  of  money  due  by  a 
simple  contract,  the  simple  contracit  is  liolden  to  be  satisfied  or  mer<.',('ii 
in  tlie  note,  lest  the  debtor  on  the  simple  contract  should  be  holdcii  io 
pay  it  to  the  creditor,   and  afterwards,  as  ])r()misor  of  the  note,  he 
holden  to  pay  its  contents  to  an  innocent  indorsee.     But  the  discharge 
of  the  debt  due  by  the  simple  contract  is  the  consideration   for  Hie 
negotiable  note.     When  a  factor  shall  receive  a  negotiable  note  in  p.iy- 
ment  for  goods  sold  on  commission,  as  the  consideration  arises  from  llic 
sale  of  his  principal's  goods,  the  note  may  be  holden  in  trust  for  the 
principal.     But  if  it  be  so  holden  in  trust,  and  the  principal  domniul 
the  note,  offering  to  pay  the  commission,  and  the  factor  refuse  to  assiu)i 
it  without  a  right  of  recurri'ig  to  himself,  this  is  a  breach  of  his  trust 
which  will  make  liim  answeral^le.      He  is  also  answerable  if  he  negotiale 
the  note  for  his  own  use,  or  if  the  money  be  lost  by  his  neglcit   of 
demanding  it  of  the  parties  to  the  note.      Although  a  negotiabh^  note 
may  change  the  remedy  against  the  purc^haser  on  credit  if  he  fail  to 
pay,  yet   the  relation   between   the  i-rincipal  and  factor  may   not  be 
affected.     If  the  law  or  the  usage  were  not  so,  the  disadvantages  to  tlio 
principal  would  be  great.     No  factor  would  ever  take  a  negotiable  note 
as  security  in  his  own  name,  unless  for  an  extra  compensation  as  ;ju:ii- 
anteeing  the  payment.     By  taking  such  a  negotiable  note  the  piiii  ipiil 
is  not  obliged  to   wait  for  his  money  until  due,  but  tlu^  factor  himv 
immediately  discount  the  note  and  receive  tlie  money.     But  when  Ihc 
princspal  lives  abroad  sucli  discount  is  impracticable,  unless  by  siiil- 
ing  ti»e  note  and  having  it  leturned  indorsed  by  him.     Another  gicit 
benelit  of  a  negotial)le  note  in  tlie  name  of  the  factor  is,  that  lie  in;i\ . 
on  the  credit  of  it,   make  advances  to   his  principal,  which  is   oftoii 
desired  before  the  money  is  due.      And  the  advances  are  easily  prnciiriil 
by  the  factor's  discounting  the  note.     But  if  the  note  is  in  the  nam"  '  ' 
the  principal,  the  factor  cannot,  on  the  credit  of  it,  make  any  adMUno 
to  his  principal. 

For  these  reasons  I  am  satisfied  that  the  principle  holden  l)y  our 
courts,  that  a  negotiable  note  is  a  bnr  to  an  action  on  a  simple  coutriK'; 
which  is  the  consideration  of  the  note,  does  not  necessarily  and  ;il)s 
lutely  affect  the  relation  between  a  factor  and  his  principal  as  to  tin 


rUINClTAL    AND    AGKNT. 


1«5 


[Ilii>lrative  Cases, 


iiiilliiirity  of  tho  former  to  ta':e  a  negotiable  note  in  his  own  iianu'  in 
tMi-l  for  the  hitter. 

Wliether,  in  deci'ling  this  point,  we  can  judicially  take  notice  of  thi' 
usiigc  in  Boston,  to  wliich  place  the  plaintiff  sent  his  goods  to  he  sold 
on  commission,  may  be  questioned.  But  a  general  u^age  in  any  pliiic 
by  which  sales  on  commission  are  regulated  may  be  given  in  cvideiui" ; 
for  it  is  a  reasom:"  i<;  and  legal  presumption  that  every  man  knows  the 
usage  of  the  plac  -  ••-  which  he  traffics,  whether  by  himself  or  iiis  factoi-, 
and  if  the  usage  oe  not  illegal  he  is  bound  by  it.  If,  then,  it  be  the 
wcll-iaiown  and  uniform  usage  in  Bost<jn  for  tlie  factor  to  take  nego- 
Uiilile  notes  in  his  own  nam(>  as  a  security  for  tlie  payment  for  the  goods 
of  iiis  principal,  sold  on  credit,  but  in  trust  for  his  principal,  such  usage 
must  bind  the  principal,  unless  he  give  his  factor  instructions  repiigii.iiil 
to  it;  and  such  usage  maybe  proved  to  a  jury.  Now,  I  am  satislicd  thai 
sufh  is  the  usage  in  Boston,  and,  I  believe,  in  every  commercial  city  in 
the  United  States  where  goods  are  sold  by  factors  on  commission. 

In  applying  these  ol)sorvations  to  the  case  before  us,  there  seems  to  be 
no  imputation  in  the  report,  whatever  may  ai)pear  to  be  the  case  on 
ai.othcr  trial,  of  laches  in  the  defendant  in  selling  the  plaintiff's  gin  on 
credit  to  Chapin,  nor  in  collecting  the  money.  Chapin  failed  before  thi' 
iiioiny  was  payable.  But  the  defendant  took  as  security  from  C'haiii.i 
his  iiegotial)lc  note,  payable  to  himself  or  his  order.  It  is  not  invU'ndcd 
that  the  defendant  was  to  guarantee  Chapin's  payr.ient.  or  that  he  had 
any  conunission  on  that  account.  Tlie  only  point  is,  whether  the 
defendant,  by  receiving  from  Chapin  his  note  payable  to  liimself  or  lii> 
order,  made  himself  lialde  in  all  events  to  the  plaintiff  for  tlie  payment 
of  the  money  due  on  the  note. 

My  present  opinion  is  that,  on  general  principles  of  the  law-merchant, 
independent  of  any  usage  in  Boston,  the  defendant  did  not  make  liimseir 
thus  liable;  but  if  there  be  any  doubt  as  to  tliese  general  princii)les. 
evidence  of  the  general  and  uniform  usage  in  Boston,  where  the  plaintiff 
sent  his  goods  for  sale  on  commission,  that  the  factor  lakes  negotiable 
notes  for  payment  in  his  own  name,  but  in  trust  for  the  principal,  may 
be  le<f:dly  given  in  evidence.  Upon  these  grounds  I  am  satisfied  tiiat 
the  viM'dict  ought  to  be  set  aside  and  a  new  trial  granted. 

Skduwick,  J.,  delivered  a  dissenting  opinion. 

New  trial  ordered. 


n  ^- 

l'ill 

■ 

:         1 

■\ 

i 

t 

i  •    .■■ 

■       '.'. 

:       '.i 

1 

':n 

1 

1 

'm 


'  \^l 

■  « 

n 

■  1  i 

P. 

'% 

'^ 

' 

:' 

\ 

'4. 

\ 


til 


;  ')"■{ 


^11' 


W-Wr^ 


(HI 


i      I 


!!        ( 


..I 


l8iJ 


I.V    DIFFKUKM"    UKKATIO.\8    AND    OCCUPATIONS. 


Jones  V.  Bowden. 


20.    VENDOR     AND   PURCHASER  — UkSAGE   AS   TO   WARRANTO. 

Jones  v.  Bowden.* 

In  the  English  Court  of  Common  P/eKs,  May,  1813. 

Rt.  Hon.  Sir  Jamks  Mansfield,  Lord  Chief  Justice. 

John  Hkath,  Esq., 

Sir  SouLDKN  Lawkbncb,  Kt., 

Sir  Alan  Chambbb,  Kt., 

Sir  ViCARY  GiBBs,  Kt., 


Judges. 


A  warranty  may  be  implied  from  the  custom  of  a  particular  trade.  It  being  nsnal,  in  the  aalfs 
by  auction  of  drugy,  to  state  in  tlie  catalogue  if  tliey  were  sea  ilaniaged  or  not,  and  if 
nothing  is  said  as  to  their  ((uality,  they  are  supposed  to  bo  sound,  tlic  dcfcn(l;iii(s  otfcred 
for  sale  a  quantity  of  sea-daniiiged  pimento,  without  saying  anything  about  iti  condi 
tion,  which  waa  purchased  by  tlic  plaintiff.  Held,  that  this  was  equivalent  to  a  sale  of 
the  goods  as  and  for  goods  that  were  not  sea-damaged,  and  that  aa  action  lay  for  thi; 
fraud. 

This  was  an  action  upon  the  case  for  a  deceit  in  the  sale  of  some 
pimento.     The  first  count  of  the  deehiration  slated  a  warranty  that  the, 
pimento  was  sound,  and  in  good  state  and  condition,  and  fi-ee  from  dam- 
age.    The  second  count  stated  tliat  the  defendants,  well  knowing  tli;it 
divers,  to  wit,  twenty,  bags  of  the  i)imento  had  been  and  were  siui- 
damaged,  and  in  a  bad  state  and  condition,  and  that  divers,  to  wif., 
eighty-one,  bags  thereof   were  also  damaged,  and  in  a  bad  state  and 
condition,  did  nevertlieless  falsely,  fraudulently,  and  deceitfully  repre- 
sent the  same  one  hundred  and  one  bags  of  pimento  to  be  sound,  and  in 
a  good  state  and  condition,  free  from  damage,  and  thereby  indnci'd  the 
plaintiffs  to  buy  the  same,  etc.,  whereas,  in  truth,  the  pimento  at  the  ♦iine 
of  tiie  sale  and  representation  was  not  sound,  etc.     The  tliird  count 
alleged  that  the  defendants  were  desirous  of  selling,  and  put  up  to  sale 
by  the  candle,  (HM-tain  other  pimento,  whereof  tlivers,  to  wit,  twenty, 
bags  had  been  and  were  sea-damaged,  and  in  a  bad  state  and  condition, 
and    divers,  to  wit,  eighty-one,   bags,  resitlne  thereof,  were   :ilso  un- 
sound and  damagi'd,  in  a  bad  state  and  conilition,  and  of  little  vaiui', 
nevertlieless  the  defendants,  well  knowing  the  premises,  did  fraudulently 
and  deceitfully  sell  the  same  as  and  for  pimento  of  sound  (luality,  .uid 
in  a  good  state  and  condition,  and  not  damaged,  to  the  plaintiffs.     The 
(^ause  was  tried  at  Guildhall,  at  the  Sittings  after  Trinity  Term,  I  Si'.', 
before  IVIanskiki.u,  C.  J.     Tlie  evidence  was  that  the  d(^fendants,  who 
were  brokers,  had  a  sale  by  cnndle  on  the  twenty-ninth  day  of  March, 
IHIO,  and  had  previously  circulated  a  catalogue  of  sale,  iu  which  were 

*  nrported  i  Taiiii.  !W8. 


VExNDOU    AM)    I'lJUt  IIASKU WAKUANTY. 


iST 


Illustrative  Cases. 


iiirhiilcd  "  187  biiiis  of  piir'snto,  bonded,"  and  at  the  foot  of  the  cata- 
Id^iir  w.'H  iiiserti'd  :i.  (,  claration  as  follows:  "  The  goods  to  be  seen  as 
>|K'(ilied  in  tlie  ciitaloj^ue,  and  reraaiiider  at  No.  J56  Camomile  Street." 
The  defendants  had,  about  two  months  liefore,  purchased  the  pimento  in 
(|ii('stion  for  tlieir  |)riiK'ipal,  at  a  sale  comprehending  both  damaged  and 
iindiiinaged  pimento,  under  a  catalogue  which  stated  this  to  be  sea- 
liiiiiKiged.  The  purchaser  had  repacked  it.  Pimento,  although  not 
(l:iiiiaged,  yet  if  it  has  l)een  repacked,  or  is  contained  in  bags  that  have 
bi;en  discolored  by  sea-water,  produces  a  less  price  in  the  market  than 
pimento  of  the  same  quality  which  has  not  been  repacked  nor  the  hags 
discolored,  either  of  those  circumstances  bringing  it  into  discredit. 
Tlie  defendants  had  drawn  from  the  i)ulk,  for  the  purposes  of  the  pres- 
I'lit  sale,  samples  which  were  impartially  taken,  and  were  exhibited  to 
till'  liidders,  whereby  it  appeared  to  be  dusty  and  of  an  inferior  quality ; 
lull  it  did  not  thereby  api)ear  that  it  had  been  sea-damaged,  neither  did 
it  nor  (tan  it  ever  appear  by  the  sample  whether  pimento  has  been 
ivpiicked  or  not.  The  plaintiffs  became  the  purcluisers.  At  the  time 
of  this  sale  good  pimento  was  worth  abf)ut  lid  per  pound,  and  the 
price  given  for  the  article  in  question,  which  was  about  13ff,  was  no 
more  than  a  reasonable  price  for  it,  after  taking  into  consideration  the 
f;i(t  tliat  it  had  been  sea-damaged  and  repacked.  Pimento  is  sometimes 
sold  witli  an  express  warranty  of  soundness  ;  but  when  damaged  pimento 
is  offered  to  sale  bj'  auction  it  is  usual  in  the  trade  to  state  that  it  is 
:lam!igcd,  and  if  nothing  is  added  with  respect  to  its  quality  it  is  sup- 
posed to  be  sound.  The  goods  in  question  were  offered  to  sale  l)y  the 
audioneer  without  any  addition  or  conuuent,  and  though  the  advertise- 
ments stated  that  it  was  to  be  seen  at  the  dot^ks,  they  were  never  dis- 
tilbuted  until  the  day  next  before  the  sale,  and  no  one,  in  fact,  then 
inspected  the  goods.  For  the  |)laiiitiffs,  it  was  urged  that  there  was  a 
defect  known  to  the  seller,  but  unknown  to  the  buyer,  and  one  which 
the  hiiycT  had  no  reasonable  means  of  discovering,  and  the  question 
was  wlietlii'i'  that  were  a  fraud  ;  and  if  it  were  a  fraud,  whether  it  could 
he  reeoveretl  for  in  the  form  of  declaration  above  stated  ;  and  the  cases 
were  cited  of  Parkinson  v.  Lre  '  and  Mi'llisk  v.  Mottetix.'^^  The  defend- 
iints  insisted  that  they  were  not  liable.  Tlie  jury  said  that  the  state  of 
tile  goods  ought  to  have  been  communicated  by  the  defendants  to  the 
l'':iintiffs,  and  fomid  a  verdict  for  the  plaintiffs  for  £423,  the  price  they 
Ii:id  i>iveM,  subjeit  to  the  two  points  reserved:  whether  the  action  could 
he  at  all  maintained,  under  the  circumstances;  and  if  it  could,  whether 
it coidd  be  maintained  on  the  third  count. 


rnrnrTf 

m 

|1m        ;'^,,^. 

\'l 

i        "'  ■ 

\           ■  ■  l 

;  :' 

1' 

* 

■"'M 

1 

;;i 

15 


Iff 


l\i 


;:  m 

■irl 

■tl 


'i  KaHt,  ;U4. 


I'oiilie  N.  P.  115. 


i         '    '' 

!■! 

;!■,'*' 

i: 

M  :  ' 

' 

■»     ,'1 

'■'■'    '     ' 

if 

1  -■ 

Ki'  '^  '■ ' 

mWi  ^'            ' 

M|||i  '■ 

Ip  ' 

ij-lil  !i  ii 

^flftfl  £ ' 

H 1' 

;■' 

fffl      :  1 

fi! 

i^^iii 


188 


IN    Dll  FJilJKNT    ItKLAilONS    AM>    OCCL  I'A  I'lONH. 


Jones  V.  Bowden. 


Lnis,  S(!rjt..  in  Mich.iolinas  Ti-nn.  1812,  obtnined  :«  rule  nit^i  to  set 
aside  the  verdict  uiid  outer  u  nonsuit. 

Shepherd  and  Vanghan,  Serjts.,  now  siiowed  eau'^e.  Tiiey  relied  on  tlic 
evidence  as  luivin<r  proved  a  custom  in  the  tnide  to  dediire  at  the  lime  n\' 
sale  that  the  goods  were  damaged,  when  such  w:is  the  case,  and  insi?,tt;il 
that,  therefore,  the  passing  over  tliat  fact  in  ^-ilence  was  eciuivaleiil  to  a 
representation,  nay  farther,  i1  was  even  a  wananty  that  the  goods  were 
sound.  Every  circumstanci'  which  Iowim's  the  value  of  the  goods  in  the 
market  is  a  defect  which  ought,  under  tiiat  custom,  to  be  disclosod  liy  tin 
seller.  It  was  clear  that  the  defect  was  in  tins  case  kni;wn  to  the  silici. 
The  buyer  had  not  the  means  of  dis(!oveiing,  by  the  exercise  ol  oi'Iinm  \ 
diligence,  the  facts  tliat  the  pimento  had  been  sea-damageil  and  reiKickcd. 
The  sample  would  not  sliow  it.  The  reference  to  ilie  goods  bondid  in 
the  docks  was  nugatory,  for  bonded  goods  are  surrounded  with  such  a 
mass  of  other  goods  that  it  is  ini[)racticable  to  inspect  tlu-m.  'Jiu'  Jni  \, 
in  saying  that  the  defects  ought  to  have  been  C(»m>nnnif  ated,  hiul  t'oiin  1 
that  there  was  fraud  in  fact.  The  plaintiffs  were  the/efore  eiiiit!(  1  to 
retain  their  vcidict  on  the  third  count,  which  alleged  it  to  ite  dom 
scienter,  it  not  being  pretended  that  there  was  any  ground  to  ai;i^i  \\\v 
judgment  on  that  count. 

Letis  and  Best,  Serjts.,  contra. — The  mere  silenca  is  neither  a  wur- 
ranty  nor  even  a  representation,  for  the  defendant!,  sell  by  a  i  ri.ii  .1 
particular  referring  to  the  place  where  the  goods  are  to  be;  inspciirl. 
This  brings  the  case  within  the  princaple  of  Bwjlo.holey.  WaUci->i,^  Mtll'sl, 
V.  MotleHX,  and  Pickerlwj  v.  Doinxon,-  viz.  :  that  where  tlie  buyer  has  an 
opportunity  of  examining,  the  seller  is  not  bound  to  disclose  tiie  deiVct-. 
The  catalogue,  stating  that  the  pimento  was  bonded,  referred  the  lii(ld(!> 
to  tiie  docks  for  an  inspection.  If  such  part  as  was  there  was  diiliriih 
to  be  seen,  yet  the  j)laintiffs  might  Inive  inspect(Hl  such  [)art  as  \\a-  in 
Camomile  Street.  ]\Iere  silence,  where  the  party  is  not  called  on  lo 
dechu'c,  is  not  a  rei)resentation.  Alind  e,st  tacere  alind  <; (a,-,'.'^  Ih' 
doctrine  that  a  sound  price  is  evidence  of  a  warranty  of  a  horse.  i> 
long  since  Justly  exploded.  It  was  competent  to  the  pUK'huM'r  Ic  i'a!l 
for  another  criterion  of  the  quality  than  the  sample,  or  to  ui:d;r  iii.|!iii  it  > 
respecting  such  qualities  as  the  sample  did  not  disclose :  l)ut  he  iii'Im 
no  iiKjuiries.  The  gisneral  rule  is,  that  where  there  is  no  express  \va:- 
ranty,  unless  the  seller  practi(H\s  some  trick,  the  maxim  caviutt  cmpt"' 
api)lies.  The  evidence  of  the  practice  to  mention  the  (l(fe<  t  when  dru_- 
wcre  damagiid,  did  not  amount  to  proof  of  a  uniform  custom  in  ihi-^ 
trade  to  disch)se  all  faults.     It  was  in  evidence  that  the  brokers  irt- 


1  8  Cuin|).  i:i4. 


«  4T:iuii.  779. 


Cic.  Do  Off.,  lib.  ?,,  tit.  60,  p.  SSI^,  stciili. 


VKNiJOK    ANO    rLKCHASER. 


1«J> 


•  Iliistiative  Cases. 


riui  fitly  sold  drug-  witli  ;ui  express  warranty,  which  would  be  suporfluous 
if  tiicro  were  an  iuvarialile  implied  wananty  ;  nor  did  the  plaintiffs,  at 
the  trial,  rely  on  that  special  usage,  otherwise  tiie  fact  would  have  been 
move,  closely  examined  into.  There  is  no  count  on  which  the  plaintiffs 
can  recover;  if  there  be  any  giound  of  action  at  all,  the  case  must  rest 
on  the  sort  of  duty  of  which  a  brea(;h  is  intended  to  be  averred  by  the 
tiiinl  count,  but  that  count  alleges  a  fraud  founded  on  facts  entirely 
diltVrcnt  from  those  which  exist.  It  does  not  state  tlial  which  is  the 
only  subject  of  complaint,  the  concealment  by  the  sellers  of  the  tech- 
nical defect  of  repaeiiing  and  stained  bags.  The  allegation  therein  that 
the  defendants  sold  the  pinumto  as  and  for  pimento  of  a  sounrl  quality, 
and  ill  good  state  and  condition,  is  disproved  by  the  evidence,  which  was 
that  the  defendants  sold  it  by  the  samplo,  and  that  the  sample  showed  it 
to  be  dusty  and  of  inferior  (piaiily.  If  tliat  count  could  be  supported  by 
bucli  'videiicc,  a  purt'iiaser  would  have,  upon  discovery  of  the  slightest 
defect  ill  the  (luality  of  the  goods,  the  full  benefit  of  a  warranty  where  a 
warranty  iuul  never  iieen  given. 

Mansi'iki.d,  C  J.  —  If,  in  this  case,  any  ground  had  been  laid  by 
iiflldavit  to  show  that  the  defendant  had  been  at  all  surprised  or  misled 
as  to  what  might  be  pnivi^d  against  him  oti  this  third  count,  we  might 
have  thought  it  proper  to  send  it  again  to  a  jury ;  but  the  c:ase  was  not 
m(ved  on  the  gnmud  of  surprise,  and  there  is  no  such  evidence  ;  and  the 
jury  having  stated  that  they  thought  the  defendants  ought  to  have  dis- 
closed the  sea-damage,  though  neither  the  defendants  particularly  cross- 
examined,  nor  did  the  plaintiffs  expressly  examine  their  witnesses  to 
prove  or  disprove  the  custom,  and  tlun-i-  being  this  strong  circumstance : 
that  the  defendants  bought  the  goods  for  sea-damaged,  the  distinction 
between  pimento  that  was  sea-damaged  and  that  which  was  not  sea- 
damaged  being  perfectly  known,  1  think  it  would  be  too  much  to  dei)rive 
the  plaintiffs  of  the  benefit  of  this  verdict.  Since  it  is  usual  to  mention 
the  fact  if  pimento  is  sea-damaged,  when  this  is  not  mentioned  as  such, 
how  would  any  one  understand  the  catalogue,  having  simply  the  word 
"liiineuto,"  but  not  particularized  as  being  sea-damaged?  As  to  the 
sample,  it  is  in  evidence  that  from  that  no  judgment  can  be  formed 
M'spocting  the  sea-damage,  the  knowledge  of  which  can  only  be  had  from 
inspecting  the  bags.  These  defendants,  then,  do  as  is  alleged  in  the 
third  count  —  sell  it  as  pimento  not  sea-damaged.  There  are,  it  is 
true,  in  that  alk^gation  the  other  general  words,  "  of  sound  quality,  and 
in  good  state  and  condition,"  but  they  do  not  stiem  to  me  so  to  vary  the 
eoimt  as  to  prevent  the  plaintiffs  from  recovering  on  that  count  in  a  case 
where  the  defendants,  upon  selling  sea-dainaged  |)imento,  have  not  made 


|Wl1'!'ffl»iH^j 

'  1  ;| 

'           :'i 

: 

'           ''  M                   ;' 

,  n 


■  ml 
.     jfl 


;  ;^i 


^ 


t  \    -i 


'i  \ 


if 


t 


:*i 


1! 
it 

1. 

•i  1     i   . 

X    ' 

r) 

tl) 


il   : 


1S)U 


1\    DU'l'JiKEiN T    UELATlU>b    A.nU    UC(JU1'AT10N«. 


Conmi   0.  Robinson. 


the  reprosonlation  which  is  usually  mado  by  persons  selling  piiiu.'/iiu  of 
that  floserij)tiun. 

Hkatii,  J.,  concurred,  and  mentioned  a  trial  before  himself  on  ihc 
Home  Circuit,  in  an  action  on  tiic  sale  of  some  sheep  sold  as  stock;  n\v\ 
the  evidence  was  tiiat,  by  the  custom  of  the  trade,  stock  were  under. -in  (1 
to  be  sheep  that  were  sound,  and  he  directed  the  jury  that  it  amounts  1 
to  an  ira{)lied  warranty  that  tliey  were  sound,  and  that  direction  was 
never  questioned,  when  the  case  afterwards  came  before  tin;  Court  nf 
King's  Bench. 

CiiAMBKE,  .1.,  was  of  the  same  ojnnion. 

GiBBs,  J. — The  justice  of  the  case  is  with  the  plaintiffs,  but  I  ilo 
certainly  doubt  whether  the  evidence  meets  any  of  the  counts  in  lli  • 
declaration.  For,  in  all  the  counts  it  was  stated  either  tliat  the  pimento 
was  represented  or  warranted  sound,  or  that  it  was  put  up  to  sale  ;ifs  of 
sound  quality  and  in  <ifood  state  and  condition,  and  not  daniMtreil. 
However,  as  my  brotliers  think  <lifferently,  I  distrust  my  own  opinion, 
and  the  rule  must  be  discharged. 

Bvle  discharged. 


21.  SAME  — USAGE   AS  TO   MEASUREMENT  AND   WEIGHT. 

Conner  v.  Robinson.* 
In  the   Court  of  Appeals  of  South  Carolina.^  April.,  1834. 


Hon.  David  Johnson,  President. 
«'    John  B.  O'Nkall,  ; 
"    William  Hakpek, 


'  [judges. 


Ir  '    I 


A.  purchased  of  B.  a  number  of  bales  of  cotton,  at  a  certain  price  per  pound.  Srvnnii 
months  i)rior  to  the  sale  the  cotton  had  been  weighed  by  the  wharfinger,  and  iiiavkiMi  on 
the  bags  and  in  the  books  at  <i3,043  pounds.  When  the  cotton  was  delivercci  il  »;is 
reweighed  by  A,,  and  found  to  amount  to  only  Ul,20,')  pounds.  A.  thereupon  paid  H.  for 
the  cotton  as  of  the  latter  weight,  but  refused  to  pay  for  more  tlian  he  had  ariually 
received.  In  a  suit  by  B.  against  A.  for  tlie  difference,  it  was  proved  that,  according;  to 
the  custom  of  the  trade,  cotton  was  wciglicd  by  the  wharfinger  before  it  was  put  in  stnrc, 
and  the  weight  marked  on  the  bags  and  entered  in  books  kept  for  that  purpose,  and  tliat 
where  a  sale  was  made  without  any  stipulation  to  the  contrary,  it  was  undersliod  as 
being  made  upon  the  basis  of  the  weights  thus  ascertained.  ITehl,  that  A.  was  bound 
by  the  custom,  and  that  B.  was  entitled  to  recover. 

Assumpsit.     In  May,  1831,  the  defendant  purchased  of  the  plaintiff 
201  bales  of  cotton,  at  a  certain  price  per  pound.     In  the  February  pre- 

*  Reported  2  Hill  (S.  C).  3M. 


'  H 


VKNDOK    AND    rLKCHA.SKi: MKAsLUKMENT    AND    WEUilir.     It'l 


llliislralive  Cases. 


cedin*?,  Uh>  cottDii  IukI  bci'ii  wciulujd  at  public  scales  and  put  in  store, 
and  the  wiij^lits  entered  on  tlie  sc:ile-house  books  b}'  the  whar(in<rer,  and 
accoidinu;  to  these  tlie  "iOl  bales  wei«fhi'd  in  the  ajiffjrejrate  fi8,04;> 
|)()nMds.  On  the  day  of  sale  a  bill  of  parcels  was  made  out,  and  the 
ueiL-^iits  takiii  from  the  wliarf-books  and  an  order  for  didiverv  given. 
When  the  cotton  was  delivered  (whicli  wjis  on  the  same  day),  tlie 
(id'endant  haviiii;  some  reason  to  lielieve  that  there  was  a  delicitiney  in 
tiKi  weight,  liad  it  rewcMghed,  and  it  was  tiien  ascertained  tliat  it  weifjlied 
only  ()l,20r>  i)ounds,  makini^  in  the  aj;'^ie;^ate  a  loss  of  1,h;58  pounds, 
;;n  avera;^(!  of  aliout  nine  pounds  to  tlie  bale,  'i'he  defendant  paid  the 
plaintiff  for  the  cotton  according  to  its  weight  on  the  reweighing,  at  the 
rate  agreed  on,  but  refused  to  pay  for  any  beyond  that,  and  this  aiition 
was  brought  to  recover  for  the  <lifference  between  the  wharfinger  weights 
;ai.l  the  weight  on  the  reweighing. 

Tiie  ground  on  which  the  plaintiff  relied  was  that,  according  to  the 
I'Mstom  of  trade,  (!otton  is  wt'ighed  by  the  wharfinger  before  it  is  put 
into  store,  and  the  weights  marked  on  the  bags  and  enlcifd  into  books 
kept  for  that  purpose ;  and  when  a  sah;  is  made,  without  a  special  con- 
tract to  the  contrary,  it  is  unth'rstood  as  having  bei'u  made  with  I'efer- 
iiK-e  to  the  weights  thus  ascertained,  and  the  bill  of  parcels  is  made  out 
from  these  books.  There  was  a  great  deal  of  evidenc-e  given  in  relation 
to  this  custom,  both  for  and  against  it;  the  weight  of  the  evidence, 
however,  appeared  to  establish  it. 

His  Honor  charged  the  jury  that  if  the  parties  contracted  with  refer- 
ciue  to  any  particular  custom,  they  must  be  controlled  liy  ii.  If  they 
ilid  not  understand  each  otiu'r,  and  one  thought  he  had  sold  by  the 
wliarfiiiger's  weight,  and  the  other  that  he  had  a  right  to  reweigh  the 
cotton  before  it  was  shipped,  then  the  contract  must  be  governed  by  the 
laws  of  the  land  or  the  custom  of  trade.  The  law  W(ndd  not  imply  that 
one  should  pay  for  what  he  did  not  receive ;  as,  if  one  were  to  go  into  a 
store  and  buy  one  hundred  blankets,  and  take  a  bill  of  parcels,  and  it 
was  ascertained  before  the  blankets  were  taken  away  that  he  had  but 
ninety,  the  mistake  should  be  corrected  or  the  purchaser  would  not  be 
tonipelled  to  pay  for  but  ninety.  So  of  cotton.  If  a  purchaser  of 
cotton  take  a  bill  of  parcels  from  the  wharfinger's  books,  and  it  should 
be  ascertained  that  the  wharfinger  had  made  a  mistake,  it  ought  to  be 
rectified,  and  the  i)ui'chaser  compelled  only  to  pay  for  the  actual  weight. 
When  there  is  a  gross  difference,  not  arising  from  natural  causes,  actual 
weight  should  govern ;  but  where  the  difference  between  the  wharf- 
in<Ter's  weight  and  a  subsecjuent  weighing  aris(!s  from  natural  causes, 
tlie  coiiti-act   must  be  governed  by  the  custom  of  the  place.     Whether 


\:f 


IT;. 


mm 


1 


if  ii 


li)J 


IN    UUFKKKNT    KELATIONS    AND    OCCUi'ATIONS. 


Coiincr  1).  Robinson. 


t'.' 


'ih', 


;t! 


mt 


m 


mm 


11'  i  f 


such  custom  existed  it  was  for  tlie  Jury  to  determine,  and  if  it  did  i  xist 
lie  would  not  reg;ird  it  Jis  unreasonable. 

The  jury  found  for  the  pliiiiitiff  on  Mie  i^^round,  as  stated  in  the  verdict. 
that  the  defendant,  in  making  the  contract,   made  no  stipulation  for 


reweiglung. 


The  defendant  appealed,  and  now  moves  for  a  nonsuit  or  new  Ui;il. 
on  the  grounds  (t)  that  the  custom  wis  not  proved;  and  (2)  if  prn>t<l, 
it  was  unreasonable,  and  therefore  bad. 

Dnnki'n,  for  the  motion.  — A  priori,  a  contract  to  pay  a  certain  prirp 
per  pound  means  according  to  the  weight  at  the  time.  Hut  it  is  alligeil 
that  the  contract  was  made  with  reference  to  the  scale-house  books ;  oy. 
in  other  words,  it  is  claimed  to  sul)stitute  the  wliarlinger's  weights  fur  the 
tiue  weights,  by  which  an  actual  loss  must  accrue  to  the  defendant;  aiin 
custom,  it  is  said,  is  to  sanction  this  proceediiig.  A  custom  which  will 
do  this  must  be  general,  and  have  received  the  sanction  of  a  court  of 
justice,  and  Itei'u  recognized  as  a  part  of  the  law  of  the  land;  a  moro 
local  custom  caimot  vary  the  terms  of  a  contract.^  A  custom  may  lie 
admitted  to  explain  a  contract  when  it  is  e({ulvocal,  but  where  tlie  torin^ 
of  a  contract  admit  of  no  doubt,  no  custom  can  control  them.  The 
contract  here  was  to  pay  a  cerhiiu  price  per  pound;  there  is  notliinii 
doubtful  in  this;  a  pound  weight  means  notliing  more  or  less  tli;iu  ;i 
pound  weight,  and  no  cnstoin  can  vary  its  meauiiig.-  A  custoiii  to 
receive  bacon  a  little  tainted,  for  good  ijacon,  is  not  admissible.-'  As  td 
the  propriety  of  ailmitting  custom  to  control  the  meaning  of  contijuts.^ 
A  custom,  to  be  good,  must  be  reasonable ;  but  it  is  unreasonable  thai 
one  should  be  compelled  to  pay  for  what  he  never  i-eceivcd,  or  more  than 
he  contracted  to  pay.  It  is  usual  to  take  the  teller's  count  at  bank,  and 
to  purchase  goods  by  the  manufacturer's  mark  ;  but  it  never  wa*  licai d 
of,  that  if  the  teller  made  a  mistake,  or  the  manufacturer's  iiiiuk 
w:is  not  correct,  the  receiver  of  the  money  or  the  purchaser  of  the 
goods  would  be  bound.  The  example  drawn  from  the  sales  of  tul)ac'C'o 
has  no  application,  for  that  is  not  founded  on  custom,  but  is  rcgiihitiMl 
by  statute,  jiroviding  a  scale  of  shrinkage.^  A  custom  may  be  so 
unifoi-m  and  general  that  it  may  be  supposed  parties  contract  in  ivfui- 
ence  to  it ;  but  here  it  seemss  doubtful  whether  such  custom  exists,  some 
of  the  factors  proAing  it,  and  others  denying  it  and  not  acting  under  it." 

King,  contra.  — The  plaintiff  does  not  come  here  to  enforce  a  contract 


1  Thonias  t'.  Clarke,  2  Stark.  N.   P.   4.'iO;       Bos.  &   I'lil.    IGS;    Prescott   v.    Hul)l)ell,   1 


Edie  ('.  East  India  Co.,  2  Burr.  1216. 

-'  Homer  v.   Dorr,  10  Mass.  2G;  Vates  v. 
Pym,  ()  Taun.  446 

3  Todd  V.  Ueid,  4  Barn.  &  Aid.  210. 

*  1  Ph.  on  Ev.  434 ;  Anderson  v.  Pitcher,  2 


McCord,  1)5;  Barksdale  v.  Brown,  1  Nott  A 
M.  519. 

"  3  Brev.  Dig.  89-90. 

"  Trott  V.  Wood,  1  Gall.  444;  Thomas  v. 
Clarke,  2  Stark.  N.  P.  4,50. 


lite?    r^l 


VKNUOli    AND    I'LUCUAbliU .MlUASLliKMK.M"    AM)    WKUMir.    I  IK) 

Illuslriitive  Cases. 

coiitniry  to  law,  but  to  compel  tlu-  defi'iidant  to  keop  his  coiilract  ;  that 
w;iH  complete  on  the  delivery  of  tl»e  order  on  the  wliartingcr,  witli  the 
lull  of  parcels  made  out  from  tlio  scale-bookc'  And  the  defiMidant 
purchased  accordinu'  to  the  bill  of  pureels  received  by  iiim.  Accordin*? 
to  the  usage  of  traile  which  is  established  by  the  finding  of  tlie  jury, 
the  purchaser  buys  cotton  with  reference  to  the  wliarlinger's  weiglits 
unless  there  is  an  express  stipulation  for  reweiuiiing.  There  is  notliing 
unreasonable  in  this.  Cotton  loses  or  gains  in  weight  according  to 
circumstances,  and  the  purcliaser  buying  with  ri'ferenec  to  the  scale- 
weights  agrees  to  take  the  chance  of  loss  or  gain.  All  the  witnesses  prove 
the  custom.  The  instances  in  which  it  lias  liecn  departi'tl  from  were  i)y 
express  contract.  Xor  is  this  a  local  custom.  Charleston  is  a  market 
for  this  and  part  of  the  neighboring  States,  nud  a  custom  affecting  such 
interests  is  a  general  custom,  and  obligatory.  The  factors  are  the  best 
judges  of  the  interest  and  convenience  of  those  concerned,  anil  the 
comt  'should  not  disturl)  them  in  the  exercise  of  this  right.  Such  a 
custcjm  is  good,  and  will  control  this  contract. ^ 

rpltii/ru,  sanu'  side.  —  It  was  known  to  both  parties  that  the  cotton 
h.id  luen  weighed  by  a  wharfinger  sworn  to  weigh  correctly  and  impar- 
tially.'' It  never  could  have  occurred  to  the  seller  that  he  was  oldiged 
t()  incur  the  expense  of  reweighing.  All  the  witnesses  concur  in  the 
existence  of  the  custom,  although  it  has  not  always  been  insisted  on. 
Wc  nnist  sui)pose,  then,  that  the  defendant  contracted  with  reference  to 
it.  and  had  the  wharfinger's  weights  l)efore  him  when  he  purchased,  and 
conse(iuentl3'  purchased  according  to  those  weights.  The  question  really 
is,  whether  there  was  an  implied  warnuity  on  tlie  part  of  the  seller  that 
the  ccjtton  was  full  weight.  The  doctrine  of  warranty,  however,  does 
not  iipply  to  proiluce,  when  the  purchaser,  if  he  will,  may  ascertain  the 
quiuitity."*  " 

Hunt,  in  reply.  —  The  contract  wai=  for  so  many  bales  of  cotton,  at  a 
certain  i)rice  per  pound,  and  the  question  is,  whether  defendant  is  bound 
to  pay  for  a  greater  numl)er  of  pounds  than  he  got.  A  custom  that  will 
estaljlish  his  liability,  if  it  is  not  unreasonable,  and  therefore  bad,  should 
he  so  well  established  and  so  long  acquiesced  in  as  to  leave  no  doubt 
that  the  parties  understood  it  and  contracted  with  i-eference  to  it.  It 
should  be  general-'^  and  of  long  standing,  reasonable  and  universally 
acquiesced  in.*^     The  proof  here  is  that  only  the  factors  acted  on  this 


'  Searle  v.  Kccves,  2  Esp.  5it8. 

-  Ueiiner  v.  Iliink  of  Columbia,  ante,  p. 
llti;  <m\U\  V.  Wright,  1  Caines,  4:i;  Rluiulell 
<••  t'iiitor:ill,5  Hani.  &  Aid.  283;  Galloway  u. 
Huglms,  1  Bailey,  553. 


"  City  Laws,  2.'57,  248. 
<  Cai  nochan  i:  Gould,  1  Bailey,  179. 
s  Cliastiiin  V.  Bowman,  1  Ilill,  271. 
'  llayward  r.  Middleton,  .i  McCord,  121; 
lUi-liloith  V.  lladlleld,  G  East,  519. 


H 


13 


Pi 


1!)4 


IN    DIFl'KUK.NT    liELATlONS    ANU    OC  (  I  lA  1  Ii  ).\8. 


Cornier   V.  Kobinson. 


■•  I 


m 


i|*l 


n 


custom,  and  whi'iicvor  it  has  liccn  resisted  by  tho  pimh.'iscr  it  has  oitlicr 
been  abandoiicfl  or  the  contract  lias  been  liroivcn  off.' 

Johnson,  J. — Tlie  liislory  of  our  jnris|)ru(len(  •  abundantly  slmus, 
that  the  law-merchant  is  f(ir  the  inos«  part  uiade  ujt  of  rules  ori<:iii.ill\ 
framed  and  acted  upon  by  tlic  merchants  for  tlieir  own  convenience  ami 
tlie  benefit  of  trade,  which,  with  the  sanction  of  the  courts  of  iii>lico, 
have  become  the  settled  law  of  the  land,  and  as  binding  on  the  citi/.vn 
as  any  other  rule  of  law;  and  it  is  from  this  source  that  the  rules  fdi 
the  interpretation  of  mercantile  contracts  are  priiicii)aily  derived.  Evirv 
trade,  art,  and  piofission  has  a  laupjuage  in  som»'  degree  pecnli;ir  lo 
itself,  and  it  is  only  by  reft'rence  to  the  general  understanding  of  tlmsc 
who  are  acciiNl.ini'd  to  use  it  that  we  arrive  at  the  meaning.  For 
example,  wheii  a  Idll  of  exchange  or  promissory  note  is  made  j)ay:ilili- 
on  a  certain  day,  one  not  conversant  with  mercantile  us:ige  wuiil  i 
neces.^arily  coiiclude  that  it  meant  what  was  expressed,  anil  that  the 
acceptor  of  the  bill  or  the  drawer  of  the  note  was  bound  to  pay  on  tlie 
day  speciOed  ;  and  it  is  only  by  reference  to  the  understanding  and  us;i!.'c 
of  merchants  that  the  days  of  grace  are  allowed  in  addition  to  ;ill 
others.  This  process  of  law-making  is  perhaps  the  most  um'xccptioiKiMt . 
A  rule  prescribed  by  the  Legislature  is  necessarily  arbitrary,  and  it  i? 
out  of  the  qncstion  to  expect  that  every  possible  case  ujion  which  it 
may  operate  (v)uld  be  anticipated.  It  is  liable,  therefore,  soi,  <  '.liiics  to 
operate  injuriously,  and  it  is  only  tolerated  because  it  is  piod':*  tivicf 
the  greater  good.  Rules  formed  by  usage  are  the  work  of  tiim  ;  tliev 
must  be  understood  and  acted  upon  by  common  consent  before  they 
become  binding,  and  the  opposing  interest  of  those  upon  whom  thoy 
operate  is  a  sure  guaranty  that  they  will  not  be  permitted  to  opeinte 
unequally. 

The  introducn^n  of  new  articles  of  commerce,  and  any  new  sonreo  of 
enterprise  which  ts  opened  to  the  merchants  essentially  different  Iimiu 
those  which  have  preceded,  must  give  rise  to  customs  and  usagc^-  siiitt'd 
to  their  pecnliar  character;  and  as  there  are  none  more  inteiesied  than 
those  immediately  concerned  in  the  particular  trade  to  establish  those 
that  are  reasonable  in  themselves  and  precisely  suited  to  the  ocoasinn, 
there  is  no  reason  why  they  should  not  be  at  liberty  to  prescribe  rule? 
for  its  governmenv;.  These,  it  is  true,  have  not  the  force  of  law  until 
they  have  received  the  sanction  of  the  courts  of  justice,  and  in  that 
way  become  a  part  of  the  general  law ;  but  they  arc  received  as  v\\- 
dence,  and  serve  to  explain  what  was  intended  by  the  parties.  Tims. 
though  there  be  no  express  contract  between  the  parties,  yet  it  may  be 


'  n.Ttcsoii  V.  ( ireen,  5  Term  Rep.  412,  note  a. 


VKNDOK    AND    PUK(  llA^iKK MKASUUKMKNT    ANh    WIOIOllT.    Utf) 

lllustrativf  Ciises. 

icasnnably  supposed  that  thoy  nu'aiit  to  coutnict  and  ileal  according  Ik 
tlif  <f('neriil  usam-.  practice,  and  iinderjstaiidiiiii  (if  tliere  In-  aii^'tiiiiiii 
|it'('iiliar)  in  relation  to  the  suhject-inaltcr. ' 

To  make  a  rustoin  hindinii.  tiiree  ihiiiirs  only  are  neoesHfiry:  First. 
iliat  it  should  he  fjencral.  so  niucli  so  us  to  lie  <renerally  known  to  those 
lonversant  with  the  parlicnlar  traile:  and  that  is  not  repelled  hy  the 
ignorance  of  ])artieular  individuals,  for  every  one  will  he  presumed  to 
lie  :ie(iuainted  with  the  usaiiei  and  praetices  of  a  trade  in  which  he 
iiiL'':i<res.  Nor  will  it  he  vitiated  liy  particular  instances  of  a  depart- 
ure from  it.  It  is  every  day's  praeiice  to  pay  notes  and  liilN  on  the 
(luv  on  which  they  are  made  payaMe  on  their  face,  and  no  one  ever 
tliou^ht  that  they  tlejii'ived  the  payor  of  the  days  of  irrace  if  ];.•  thouLiiit 
jiroper  to  claim  tlM-ni.  Tiie  second  is.  tiiat  it  shoidil  he  reasor.ahle.  <  Mi 
this  suhject  CiiEVKs,  J.,  says,  in  T/ioiuns  v.  0'lf<(rii.-  that  ••  h<'  is  ;ii  a 
loss  to  conceive  of  any  usa^e  in  relation  to  a  pavtii-ular  trallic  which 
may  not  be  proved,  unless  it  l»e  so  clearly  and  palpahly  uiireasonal'le 
and  unjust,  on  the  mere  al!enati<in  of  it.  as  to  be  void."  Aii'i  I  take  it 
that  no  usapje  can  be  considered  as  unreasonable  unless  it  is  ealciihitiMl 
to  operate  unequally  and  fraudulently.  The  third  is,  that  it  must  not 
violate  any  general  rule  of  law. 

With  these  general  remarks,  I  will  now  ])roceed  bi'iefly  to  notici^  the 
evidence  which  was  adduced  on  the  trial.  Without  descending  to  par- 
ticulars, it  will  be  sufficient  to  remark,  tenc!  .•!liy,  that  the  facts  established 
by  the  evidence  on  the  part  of  tlie  plaintiff  show  that  for  thirty  years 
past,  down  to  the  present  tinn-.  ilie  g«'neral  usage  among  the  factcjrs  is. 
that  when  cotton  arrives  at  the  wharf  dry  and  in  good  order,  it  is  imnie- 
fliatcly  weighed  at  the  public  scales,  and  the  weight  marki'd  on  eatii 
liag  and  entered  in  the  scale-book,  and  if  not  then  sold,  is  put  in  store. 
If  not  dry  and  in  good  order,  it  is  exposed  for  the  purpose  of  drying, 
and  when,  in  the  judgment  of  the  whartinger,  it  is  sufficiently  dried,  it  is 
then  weighed  and  stored  in  like  manner :  that  generally  there  is  a  loss  in 
weight  during  the  time  it  is  in  store,  arising  from  evaporation,  depending 
in  quantity  upon  the  timi-  it  I'cmains  in  store  and  the  ])art  of  the  ware- 
house in  which  it  is  stored,  that  in  the  garret  immediately  under  the  tiles 
losing  more,  and  that  on  the  ground-flooi-  less:  and  some  instances  wei'c 
stated  in  which  that  stored  on  the  ground-floor  had  gained  instead  of 
lost:  that  the  usual  loss  of  weight  from  this  cause  is  four  or  five  ])ounds 
to  the  hag,  but  Avhen  it  is  picked  out  of  the  field  and  packed  early  in  the 
season  a  loss  of  ten  pounds  per  bale  would  not  be  thought  extraordinary  ; 
and  the  witnesses  for  the  plaintiff,  including  some  of  the  most  respect- 
able and  experienced  factors  in  the  city,  all  concur  in  saying  that  sales 

>  Savill  r.  )ilaii.li.in1.4  Esp.  53;  Doug.  .^)19.  a  1  Mill  Const.  148. 


I! 


! 


i^'\ 


*•-'  lii 


190 


IN    DIIFKKKNT    KKLATIONS    AND    OLl  L  rATlONS. 


Connor  v.  Uobinson. 


I  Ml  ill 


are  geiK'nilly  made  with  refcrt'iice  to  thi'  \v  '^lils  entered  on  the  si;i!c- 
book,  and  that  \hv  bills  of  pareels  are  made  out  from  the  eiitrv  on  llmi 
book.  Mr.  Robinson,  who  had  been  eni>a<>ed  in  the  trath'  for  tliirlv 
years;  Mr.  Ma^rath,  who  had  l)een  eiisijagcd  for  twenty-tivi'  years:  ami 
INfr.  Ker  Boyee,  who  had  been  engaj^ed  in  the  trade  for  seventeen  ycais, 
and  indeed  all  the  ^^  itnesses  for  the  plaintiff,  eoneiir  in  sayini!.-  that  it 
was  a  rule  generally  aeted  upon,  and  one  from  which  they  had  lu  vi  r 
departed,  except  it  was  expressly  stii)ulated  for  in  the  contract  of  s.iK-. 

Ou  the  i)art  of  the  defendant,  a  nuudier  of  witnesses  of  e(iual  ii'spi'cta- 
bility  and  experience  have  testified  ajraiiist  the  custnin  ;  but.  upon  analyz- 
ing this  evidence,  I  think  it  will  be  found  that  their  evidence  (•(>ii-i>|s 
rather  (,f  deductions  as  to  the  (Miuity  of  the  custom  than  the  I'acl  ^f  ii- 
non-existi'uce.  I  will  take,  for  example,  the  <'vidence  of  Mr.  t'aldir. 
who  is  engaged  in  buying  cotton.  lie  says  that  it  is  a  matter  of  niutuai 
oouvenience  to  take  cotton  at  the  first  weight,  but  he  consi(hns  that  the 
liui'chaser  has  a  right,  if  he  has  any  reason  to  suspect  that  the  wcii^iit 
•will  not  hold  out.  to  ascertain  the  actual  (puuitity  by  weigliing  at  tin 
time  of  tlu'  (U'livery,  or  at  any  time  before  it  is  taken  from  the  whail'. 
lu  several  instances  he  has  required  cotton  to  l)e  reweighed.  and  iW' 
factor  has  made  no  didicnlty ;  and.  in  his  opinion,  if  the  l)uyi'r  re(iniivs. 
lie  has  the  right  to  reweigh  Now,  this  a|)pea;'s  to  me  to  be,  so  far  as  tlir 
fact  is  concerned,  i)roof  that  the  gen-'ral  habit  is  to  take  the  cDttnii 
at  the  original  weiglit,  but  that  buyers  occasionally  rciiuire  it  to  lie 
reweighed,  and  it  is  submitted  to  l)y  the  factors.  80  of  the  evidciiic  nf 
]\Ir.  Adgei',  another  witness  on  behalf  of  (U-fendant,  who  has  had  gnat 
experience  both  as  a  factor  and  buyer  of  cotton.  He  stales  that  tln' 
practice  of  weighing  cotton  before  it  was  put  in  store  first  oi'iginati  d  in 
engagements  to  j)ay  the  freight  on  cotton  by  weig'.it.  and  it  was  neci's- 
sary  to  weigh  it  when  received,  to  ascertain  the  amount  of  freiiihl ;  tli;it 
although  cotton  now  ])ays  freight  by  the  l)ale,  and  that  necessiiy  nu 
longer  exists,  yet  the  habit  of  weighing  prior  to  storing  has  lieen  con- 
tinued for  th.e  convenience  of  the  wiiariinger.  The  diflicultiis  in 
relation  to  this  mrdter  have  induced  tiiis  witness  to  instruct  liis  -.vhaif- 
ing(!r  not  to  weigh  his  cotton  until  it  is  sold;  and  in  his  Judgment  tin- 
buyer  has  a  riglit  to  as  many  poni.ds  as  he  pays  for,  and  that  tl.eie  i- 
no  custom  which  i)revents  the  purchaser  from  ascertaining  tlie  weiiihl- 
Now,  as  I  understand  this  witness,  he  too  proves  that  the  general  usap' 
still  is  to  weigh  the  cotton  before  it  is  stored,  to  Avliich  his  own  practi^v 
is  an  exception,  —  perhaps  a  solitary  one,  —  and  tleit  the  pureiiasers  aiv 
jvenerallv  content  to  bnv  according  to  these  weii>hts;  but,  accordini:  to 
his  view  of  justice  and  morality,  the  purchaser  ought  to  pay  for  no  uieiv 
than  he  has  received. 


/  f'Wri|.  iWirii 


V1:M>0R   and    I'LRGJIASEIl MKASLKKMKNT    AND    WKKiHT.    U'T 

IlliistraUvo  Cases. 

I  think,  tl  lore  fore,  tlial  tlu'  fact  of  the  existence  of  the  freneral  cnstoni 
was  one  wliich,  umler  the  eireuinstauces,  fell  most  iieciiliarly  within  the 
|irnvinee  of  the  jurv.  and  unless  their  conclusion  was  in  opposition  to 
the  decided  preijondi-rance  of  the  evidence,  it  ouii'ht  to  he  decisive;  a. id 
so  f;u'  from  tlys  heing  the  case,  it  strikes  me  as  1  icing  in  accordance 
witii  it;   and  I  am  eciually  well  satisfieil  with  the  reasonahh'ness  of  the 
ciistcnn.     Upon  a  sniierficial  view  of  the  matter,  one  wonld  very  readily 
fill  into   the   opinion   entertained   l»y   the    witnesses    (>ii    behalf    of    the 
defendant,  that  it  was  nnreasoiialile  and  nnjnst  that   ;;   purt-haser  con- 
tracting to  pay  so  ninch  l)v  the  pound  weight  should  lie  r^'ipiirccl  to  pay 
for  a  greater  nunilicr  (jf  jiounds  than  he  received  ;   lint  the  legal  pre- 
sumption is  that  any  one  Avho  emliarks  in  a  particular  ti'atU'  i-;  ac(|naiute(l 
with  the  nature  of  the  article  in  which  he  di-als,  and  thi'  u'cni'ral  usages 
of  those  >' ho  deal  in  it.     We  must,  tiieii.  suppose  that  the  defendant  knew 
;i1  the  time  he  made  the  contract  that   cotton,  when  put  in  store,  w'ould 
trciicrally  lose  in  weight,  (h'pending  for  the  (pv.nitum  of  t'.ie  loss  upon 
the  part  of  the  house  ir.  which  it  was  stored,  the  season  of  the  year  in 
which  it  was  picked  and  packed,  and  the  time  that  it  was  in  stoiv  :  and 
tliat  the  general  usagi'  was  to  sell  liy  the  weight  ascertained  when  it  was 
stored,  and  from  these  date,  which  he  miglit  ascertain,  he  woulil  lie  aliie 
to  form  a  pn'tty  correct  estimate  of  the  amount  of  the  loss  in  weight. 
This  would  necesarily  enter  into  the  estimate  of  his  offer  to  purcliiye, 
ami  it  is  his  own  fault  if  he  makes  an  inconsi<lerate  offer,  for  he  is  umicr 
no  ohligation  to  give  what  the  seller  may  demand.     Tiiis.  loo.  is  a  vicnv 
iif  uiic  side  of  the  ease  only.     The  seller  has  righis  as  well  as  the  liuyer. 
He  also  is  presumed  to  know  that  cotton  will  lo 'c   in  weight  wIumi  in 
store,  and  that  the  scale-house  weights  generally  I'cpi'csent  tiie  ([uantily 
as  givater  than  would  lie  found  upon  weighing;   and  it  may  well  be  sup- 
posed that  he  has  on  that  account  submitted  to  take  i"ss  tiian   lie  would 
Imvi'  (lone  if  the   [irecise   weight   had   been  before  ascertained,   and   it 
woiiM  (1(1  injustice   to  him   if  he   was  conipelle(l  to  sui'mit    to   the   loss 
uiiicli  would  be  the  probabU'   result  of  weighing.     'J'his  mode  of  asci'r- 
taiiiing  the  (luantity  of  an  articU'  of  conuncrce  is  not  peculiar  to  cotton. 
Klmir,  for  instance,  is  habituallv  t'old  by  the  barrel,  without  stipulating 
t!i;i1  it  shall  contain  a  given  inunln'r  of  pounds,  and  yet  cNcry  one  uuder- 
"<t!iii(|s  that  it  must  contain  one  hundred  and  uinet\-six  poinids.  liecause 
it  i^  the  usage  to  put  that  (piantity  in  each   liarrel.     The  (piantity  of 
'■liilli.  or  other  goods  sold    by  the  pii'ce  or  packa-ic.    is  gciici'allv,  nav 
aliiinst  imivers;illy.  ascerlainei]  by  tiic  qnantily  staiiipe(l  upon  tlii'Ui,  and 
It  rai'dy  occurs  that   'he  pr-cise  (piantily  is  marke(|  ;  nnd  it    never  y« ' 
iK'tiUTed  to  anyone  that  if  there  should  happen  to  be  a  fi'aclinn  o»'cr. 
'ia(  the  liuyer  shouhl  pay  for  it.  or  if  a  fi';i(  lion  midcr.  the  seller  -liquid 


1* 


m 


1 1  ■ 


I   «   ': 


t        S 


1? 


I 


1; 


H 


'i^y  i: 


I*,  i 


HI 


198 


IN    IHIFI.KKM     UKI.ATIONS    AMJ    OCCUPATIONS. 


KstiM'lv  r.  ("olc. 


mako  it,  uoi.d.     And  so  of  very  iiianv  otlici-  articles  which  uii<«lit   l)c 
enuinciM'fii. 

I  think,  too,  timt  the  proof  ostabli^lics  tliat  tlie  usage  is  for  tin'  fijii- 
venicntv  of  rhe  jxM'.son.s  enira^cil  ]n  tiic  trade,  and  operates  as  a  heiielit. 
Wiien  the  trade  is  brisk,  it  is  said  that  the  sanu'  parcel  of  cotton  soin(>- 
tinies  pas.ses  through  several  hands  in  a  sliort  s[>ace  of  time,  eacii  seller 
calculating  on  a  small  profit,  and  sometimes  submitting  to  h)Ss  ;  and  ii 
each  buyer  Tnight,  at  his  pleasure,  demand  that  it  should  be  reweiglieil, 
it  is  appar  it  that,  besides  tlie  loss  of  time,  tlie  expenses  must  so  diminish 
the  i)rofit  or  increase  the  loss  as  to  i^ut  an  end  to  this  sort  of  tratlic. 

The  inteicst  wiiich  this  i-ase  has  excited  hns  given  to  it  some  impor- 
tance, and  ;i>  establishing  a  rule  for  the  construction  of  these  contracts 
it  deserve-,  tlie  consideration  which  has  been  bestowed  upon  it;  but  it 
behmgs  ti'  tli:it  class  of  cases  in  which  the  parties  Imve  the  right  to  make 
the  laws  (^f  tlieir  own  contracts,  and  whether  the  verdict  ot  the  jury  or 
our  view  .>f  tiie  facts  and  the  law  be  right  or  not,  the  community  can 
suffer  no  injury.  The  1)U3'er  has  the  right  to  stipulate  that  the  cotton 
shall  l)e  ivwL-igiied,  unless  he  is  satisfied  to  take  it  at  the  wharfinger's 
weights. 

The  usage,  as  proved,  is  understood  to  extend  only  to  the  loss  of 
weight  from  natural  causes,  and  not  to  such  as  suise  from  mistakes  :iii'l 
frauds.  These  the  seller  would  certainly  be  bound  to  malvc  good,  and  it 
does  strike  me  that  the  high  average  loss  upon  this  cotton  raises  a  pretty 
strong  i)resumption  that  the  loss  liere  migiit.  at  least  in  part,  nave  ;uis(  n 
from  the  }>rosence  of  water,  which  was  unobserved  at  the  time  it  w:is 
wt'ighed  an i  stored,  and  which  has  subsequently  evai)orated  ;  but  that, 
too,  was  a  .|uestion  for  the  jury,  who  were  no  doubt  more  coiipete'.  t  to 
judge  of  it  than  the  court. 

'IMic  motiiMi  must  therefore  be  dismissed. 

IlAin'Ki{,  J.,  concurred;  O'Nkai.i.,  J.,  ai>sent. 

Motion  dismissed. 


•J.'.     SAMK— INTKHKST   (ilAIUJKI)    BY   CUSTOM. 
ESTKRLV    r.  Vox.K.* 

In    till'   Xeir    York   Court  <>/  ^Ippeals.  Jul'/,  1S50. 

Hon.  (iiM'.i'.MO  <'    linoNso.N,  f'hiif  Justice. 
"     ("MAin.Ks  I!.  Rrooi.K..-.    i 
"     .\i>i)i,o\  (i\i!i>i\Kit,       ^> . fudges . 
'*      Fi;i  r.itoisN  U.  ,Ii;wi;rr,  ) 

'  i;  •iiiiii'il  ,i  \.  V.  .".(I'.'. 


VENDOR    AND    I'UUCIIASEK 1NTEHK8T. 


191) 


Illustnitivc  Cases. 


I,  W  liiM-t!  ll'.(3re  is  a  general  usage  in  any  pariicular  traile  or  bii'^iness  to  charge  and  allow 

interest,  parties  having  knowledge  of  the  ii-*ag(!  are  deenied  to  contrary  with  lefeiciice 

lij  It. 
J.  Mil.niigh  tlie  law  does  not  in  general  give  interest  upon  an  open  running  account  for 

j; Is  Slid,  yet  an  agreement  to  pay  inteii'st  maybe  inferred  from  a  uuiforni  priictie.e 

of  the  creditor  to  cluirge  interest,  known  to  the  customer. 

I'liis  WHS  ail  action  of  as;.um2'>filt  in  the  Supreme  Court,  hrouiijht  liy 
.M.  it  P.  Ksterly  against  Cole,  to  recover  the  Iciltmce  of  an  accotiiit  of 
L!u(itls   sold,  etc.      Tlie    plaintiffs   wore    merchants   at   Medina,    Ulster 

luutv,  tnd  the  defendant,  wiio  resided  in  the  vicinity,  was  their  ciis- 
tuiiior  from  1837  to  1840.  It  was  the  practice  of  the  plaintiffs  to 
rhtiilie  interest  after  six  months  on  goods  sold  by  them,  and  the  referees 
la  fine  whom  the  cause  was  heard  found  from  the  evidence  tlitit  this  fact 
^vas  Iviitiwti  to  the  defendant.  It  was  also  proved  that  it  was  the  general 
ii:«:ifre  timong  merchants  in  that  neighborhood  to  charge  interest  ttfter  six 
luoiiths  on  their  accounts.  The  i)roof  of  this  fact  was  objected  to,  but 
the  ol)jection  was  overruled.  The  referees  reported  in  favor  of  the 
iiluiiiiiffs  for  the  sum  of  $1,144.03,  Including  over  S400  for  interest. 
ILl  ."  nprenie  Court  refused  to  set  aside  the  report,  and  the  defendant 
uppt  tiled  to  this  court.  A  statement  of  the  facts  was  entered  in  the 
rec'ortl. 

li.  W.  Peckhuvi,  for  the  appellant ;  M.  Schoonmaker,  for  the  respou- 
(U'lit. 

HiioNSON,  C.  J. — The  plaintiffs  are  merchants,  and  have  recovered 
iuteiest  tifter  six  months  on  an  open  running  account  for  goods  sold 
iiml  (1(  livered.  The  law  does  not  give  interest  in  such  a  case,  and  it 
can  only  be  recovered  where  there  was  either  a  stii)u!:it.'(l  term  or  credit 
which  has  expired,'  or  tin  agreement,  express  o"  implied,  to  pay  interest. 

All  agri!ement  for  interest  may  be  inferred  'i-oin  the  course  of  deal- 
ing between  the  parties  —  as,  where  interest  has  before  been  cliargeil  and 
tilluwed  under  the  like  circumstances;  also,  Avhere  the  creditor  litis  a 
iinif(d'ni  piactici  of  chtirging  iiiti'ivst,  which  was  known  to  the  (nistomer 
at  the  time  of  the  dealing.  And  where  there  is  a  general  usag*'  in  any 
litnticiihir  tnide  or  branch  of  buHiness  to  charge  and  allow  interest, 
litirtics  hiiviiig  knowleilge  of  the  usage  are  presumed  to  contrtict  in 
ivl'ciiiu'e  to  it;  :uid  if  the  usage  does  not  conflict  with  the  terms  of  the 
Contract,  it  will  be  deemed  to  enter  into  :ind  constitute  ti  part  of  it. 
K'lowliMlgc  of  the  usage  intiy  be  established  by  presumptive  as  well  tis 
l».viliivct  exidence.  It  mtiy  be  presumed  from  the  fact  that  both  ptirtics 
tii'c  engaged  in  the  particultu' trade  or  brtinch  of  business  to  whidi  tin' 
'^:i:ie  lelates,  and  also  from  other  fads  —as.  tlie  uniformity,  lon^  coii- 
♦iiniaiico,  tind  notonetv  of  tlu-  usage. 


Ifi     ■        ■' 


I- 


*i| 


,-4 


\i 


'  Van  Keiisselaer 


.Icwi'li,  ■!  N".  V.  Ml. 


ill': 


200 


IN    DIFFEUENT    RELATIONS    AND    OCCUPATIONS. 


Ksterlv  v.  V,o]e. 


VrW'-  ■; 


W. 


I '( -i'  ±j. 


¥  I 


W    "M 


The  facts  found  and  stated  in  this  case  touching  the  question  of  inlcr- 
cst  are,  tiiat  it  was  tiic  practice  of  tlie  i)laintiffs  and  the  general  (u.^tum 
(usage)  of  merchants  in  tlie  ncighltorhood  to  charge  inteiest  after  vjx 
montlis,  and  tliat  the  defcnchmt  knew  of  the  plaintiffs'  custom  (practicf) 
to  charge  interest.  This  means.  I  presume,  that  he  knew  at  the  time  of 
the  dealing:  and  if  he  dealt  with  the  plaintiffs,  knowing  their  imieiice 
to  charge  interest,  he  must  be  deemed  to  have  assented  to  the  terni.s.  aiul 
agreed  to  pay  interest. 

liut  it  is  said  that  there  was  not  sutllcient  evidence  from  which  to  timl 
the  fact  of  knowledge.  That  is  a  question  with  wliich  we,  as  an  :i].]ie!- 
late  court,  have  nothing  to  do.  The  court  of  original  jurisdiction  mnv 
set  asi(U'  a  report  of  referees  when  it  is  either  against  the  weight  of  ,\  i- 
dence  or  without  suflicient  evifU'nce  to  support  it,  but  an  apiiellMte 
court  has  no  such  power.  Where  the  trial  was  before  referees,  error 
can  only  be  brought  on  a  case  containing  a  statement  of  facts  —  nut 
evidence  —  prepired  and  inserted  in  the  record  by  the  coiiit  of  oriiiiml 
jurisdiction.  The  case  is  in  ciie  nature  of  a  special  verdicl;,  which 
leaves  nothing  for  a  coUitof  revicv  Dut  the  questions  of  law  arisiiig  mit 
of  the  facts  thus  stated  We  cannot  iiKiuire  whetiier  the  court  IkIiw 
in  the  one  case,  or  the  jury  in  tlie  othei:,  has  (b'awn  the  proper  eeii- 
clusions  of  fact  from  the  evidence.  The  first  instance  of  a  review  in 
an  appellate  court,  where  the  trial  was  before  referees,  Avas  A'''"'  v. 
lioifiselaer  Glaus  Factor ij^^  and  it  wili  be  seen  that  the  review  w;is  not 
had  on  the  evidence  before  the  referees,  but  on  a  statement  of  rii(t< 
drawn  up  under  the  direction  of  the  court  below  and  incorporated  in 
the  judgment  recoi'd.  I  will  barely  mention  a  few  other  cases  touehinLi 
the  point  of  practice.-  Several  things  arc  established  by  these  aiilli'ii- 
ties:  First,  that  for  tlae  purpose  of  a  review  in  an  appellate  eouil.  a 
case  containing  a  statement  of  facts  —  not  the  evidence  before  the 
i-eferees,  but  the  concbisions  of  fact  drawn  from  that  evidence  ly  llie 
(u)urt  of  original  jurisdiction  —  must  be  settled  by  that  court,  so  a>  to 
leave  nothing  for  the  appellate  court  but  questions  of  law  arising  out  of 
established  facts.  Second,  this  case  must  be  inserted  in  the  JudLiiiieiit 
record,  with  proper  enti'ies  to  show  that  the  court  below  was  inov.il  to 
set  aside  the  rc|)ort  of  the  referees,  that  the  motion  was  denied,  ami 
judgment  rendi'ri'<l  against  the  comiilaining  party.  Third,  if  mere  e\i- 
dence  is  inserted  in  the  case,  the  appellate  court  will  not  pass  ii|i''ii  it. 
Fourth,  the  appellate  court  has  no  authority  to  review   in  any  ^\i'.\  ''"' 


1  3r.»\v.  ;!«::  r.  Cow.  .W.  cnifi,  17  Weiul.   Ki'.i;  'riic  W'nyW  r.  ^^iipcii  ir 

■-■  Kfi'lcr  c.  llealli,   II    Wcnri,  477;    ICiUiff-        Court  of  Xfw  York,  '.'D  Wciid.  ijij:f;  .Mil'lifi- 
nilin  c.  C'oiiiius,  Ki  Wi.'iul.  IIH;  Mulviii  c.  I.iiiy-        u«u  r.  L'lit'iulol,  'U  Wciul.  15. 


VENUOK    AXD    rURCHASER CIIAXOE    OF    POSSESSION.        201 

Illustrative  Cases. 

sottlcinciit  i)f  tho  case  in  tlie  court  below,  but  must  take  the  facts  to  be 
trnl\-  stated. 

An  oltjection  to  the  admission  of  evidenoe  remains  to  bo  considered. 
Till'  plaintiffs,  in  addition  to  sliowing  their  own  practice,  proved  thnt  it 
w;i<  the  general  usage  of  mercliants  in  that  neisihlxM'Iiood  to  cliarge 
intere^it  iifter  six  months.  If  thi  lad  been  followed  up  with  sulllcient 
nrodf  tliat  the  defendant  knew  the  usage  at  the  time  he  deiilt  with 
the  plaintiffs,  it  would  have  made  out  a  case  for  charging  hiin  with 
interest.  As  the  usage  might  form  a  link  in  a  chain  of  evidence  going 
to  cliin'L.'e  the  defendant,  it  was  proper  to  liear  it;  and  the  decision  of 
the  referees  in  admitting  it  did  not  Itecome  inipropei-  because  the  pJMin- 
tiffs  failed  to  produce  tlie  further  evidence  which  was  necessary  to  give 
effoet  to  the  usage. 

I  understand  the  word  "  neighborhood,"  as  useil  in  the  case,  to  ine;tn 
t'le  same  town  or  place  wiiere  the  plaintiffs  curried  on  business,  and  not 
a  different  town  <n-  place. 

Although  T  should  not  be  able  to  conciu"  with  the  Supreme  Court  in 
fiiiiliiisi;  fi'oiu  the  evidence  the  fact  that  the  defendant  knew  of  the  pluin- 
tifi's"  practice  to  charge  interest,  yet  as  that  fact  is  stated  in  the  case, 
which  we  are  bound  to  regard  as  properly  settled,  I  see  no  error  in 
[juiul  of  law,  and  am  of  opinion  that  the  judgment  should  be  alTirmed. 

Jud(j)iie)d  affirmed. 


•n.  SA mi:  — CUSTOM   AS   AFFECTING  CHANGE   OF   POSSESSION. 

PuiEsTLKY  V.  Pi; MX.* 

In  fJiP  English  Court  of  Exehnqiior,  Jimnar^),  1S07. 


Ht.  lion.  Sir  Frr/itov  Ki.r.i.v,  Kt.,  Chief  Baron. 
Sir  Sami  kl  Mmmi\,  Fvt., 

"      Cl.oliCiK   WiM.IAM    WiISUMIM;    BliAMWKLI>,   Kt., 
"     WlI.MAM   FliV    CnWNl'.I,!,,   Kt., 
"      (ill.I.KUY    I'KiOTT,   Kt., 


•  Barons. 


Wli.'!i'  a  cn-^tciiii  exists  in  a  ('(M'tMiii  busiticss  for  tlic  Imyer  to  leave  good.-!  Ijoiifjlit  by  liini  In 
111.'  liiiiuls  of  the  seller,  iiiiit  it  is  so  notorious  us  to  he  practieally  known  to  all  per.-ona 
di'aliiit;  wiUi  the  seller  in  his  husinexs,  jrooils  so  lufl  in  the  h.'inds  of  ilic  x-llcr  for  a  time 
not  loiiixov  than  is  cleaiiv  williiii  the  tuistoni  do  not,  on  the  bunluiiiili  y  of  llie  seller, 
p;i->  tip  his  as>ijiiuM'  under  the  llaiitiruptcy  Ael. 

Tiiuvicu,  to  recover  fium  the  defendants.  t1ie  tissignces  in  bankruptcy 

•  tteporlcd  L.  U.  2  Kxch.  101. 


wv. 

1 

1 

■■  I 

': 

; 

1 

' 

; 

?    ' 

, 

■.i  I 


i       i 


202 


IN   DIFFERENT   RELATIONS    AND    OCCUPATIONS. 


Piiostley  V.  Pratt. 


of  R.  Grant,  lambs  and  pigs  purchased  by  the  plaintiff  of  tlie  baukiiii)' 
before  liis  banki'Uptuy. 

At  the  trial  before  Miuj.oit,  J.,  at  the  LiucDliishire  Suinmor  .V->izo,s, 
it  appeared  that  the  laiul)s  and  pigs,  togetlior  with  two  stcrrs.  w.^re 
bou<i;ht  ijn  the  10th  of  July,  1805,  The  plaintiff  paid  for  the  whuli;  ;inJ 
removed  the  steer.s,  but  left  the  lambs,  which  were  sucking,  and  tlic  jiitj-i 
on  the  bankrupt's  farm  until  it  should  suit  his  convenience  to  reniuve 
them.  On  the  15th  of  July,  Grant  was  made  bankrupt  on  his  own  |uti- 
tion,  and  the  assignees  took  and  claimed  to  retain  possession  of  tin-  hmi'is 
and  pigs  as  in  his  order  and  disposition  at  the  time  of  the  haiikrupicy. 

Evidence  was  offered  of  a  custom,  on  the  purchase  of  fariii-stoek,  to 
leave  tiie  animals  bought  upon  the  seller's  premises;  l)ut  tlh-  Jury  iiitci- 
posed  and  said  the  evidence  was  unnecessary,  for  that  there  was  a  ud'.  - 
rious  usiige  and  custom  for  the  vendee  of  cattle  to  leave  thoni  in  tlu' 
hands  of  the  vendor,  for  the  convenience  of  the  vendee,  for  a  longer  .;• 
shorter  period,  as  might  be  arranged  in  each  case. 

Upon  tiiis,  a  vt'rdict  was  taken  for  the  plaintiff  for  t'l'.),  with  leave  to 
the  tlefendants  to  move  to  enter  a  verdict  for  them,  on  the  ground  tliut, 
the  :uiimals  were  in  tiie  order  and  disposition  of  the  l):uikrii[)t  at  the  du'e 
of  his  bankruptcy. 

A  rule  having  been  obtaiiied  accordingly.  TF/Z/.s  (/)/f//^// Xcv/ho);/-,  Q.  C., 
with  him)  showed  cause.  He  contended  that,  as  the  jury  had  foiuul  as 
a  fact  that  a  notorious  custom  existed  for  the  buyer  to  leave  the  uniiiial-. 
Itought  in  the  hands  of  the  seller,  the  case  was  within  the  decisions  of 
Jfe  Ten'ff,^  Prism.'d!  v.  Lovegrove,-  and  Wftsim  v.  Peaclie.^ 

The  court  then  called  on  Field,  Q.  C,  to  sui)p  )rt  the  i-ule.  He  rolied 
upon  T/iiirI.th>i(iif"  v.  Cock  *  and  /vnoirJi'.--  v.  IlnrxfaU.'^  and  conti'inltM'. 
that  a  custom  so  alleged  amounted  to  a  g»  leral  custom  of  Kujlaud  t'^i 
buyers  to  leave  go»)ds  in  the  hands  of  sellers  until  it  suited  tlu'ir  ^^'^n• 
venience  to  remove  them.  The  case  of  Watson  v.  Peaehe  was  distii;- 
gnishable  on  th  ■  lirouud  tiiat  the  bankrupt  there  was  in  the  pMsitiuii  <'f 
hii'er  of  tin'  baig,  s.  and  a  custom  was  proved  tf)  hire  !)arges,  :ii)d  for  the 
hirer  to  use  them  with  his  own  name  paiutei'  on  them.  It  wns  in't, 
there*'ore.  as  purcliaser  of  tiie  g(  ods,  but  as  tiie  person  letting  them  out 
to  lu.e,  that  tlie  defendant  was  there  protected  ;  l>ut  the  present  ease  'V!!- 
mcrely  one  .if  the  piircliase  of  g(H)ds.  and.  if  <lef*ided  in  favor  if  the 
plaintiff,  would  ilmost  liave  the<!tt'ectof  nullifying  the  reputeil  owiuMsiiii. 
clause  in  all  suci   transactions. 


1  7  I..  T.  (N,  s.  :nO. 
-  (i  U  T.  (N.  s.,  :i-29. 
J  1  JJing.  N.  V.  :Vi:. 


*  3  Taun.  487. 

•  5  Barn.  &  AUI.  114. 


!■ 


VKN'DOR    AM)    PURCHASER  —  CHANGE    OF    POSSKSSIOX. 


203 


-Jr^JY 

ri  1:^  ^   ' 

Illii.str;iti\c;  ('a<es. 


ivKi.i.r,  C.  B. —  riiis  rnU'  iniHt  he  discliargod.  Tlic  question  bcfori' 
lb  -;i:;il  it  is  ;'  iiiif^lioii  on  wliicli  we  have  [)  >\\\'v  to  draw  infcreiu'LVi  cf 
t'lie;  -is  .vhctlKT  wo  arc  to  liold,  upon  tlic  I'vidciice  given  at  the  trial, 
tliat  these  animals  were  in  the  order  and  disposition  of  the  bankrupt, 
witiiin  tlie  meaning  of  the  IJankruptc}'  Act  of  184!).  That  ([uestion 
ijcponds  in  all  eases  on  whether  there  is  shown  to  exist,  with  respect  to 
tlu'  articles  in  question,  any  custom  of  trade  so  notorit)Us  as  practically 
tiii^e  icncnvn  re  all  who  do  business  with  those  dealing  in  such  aiticles, 
and  who  are  ''ailed  upon  to  consider  the  ([uestion  of  giving  credit  to 
tlu'iu.  hy  virtue  of  which  goods,  in  reality  the  property  of  others,  are 
allewfid  to  leniiiin  in  tiie  actual  i)ossession  and  physical  power  of  dis- 
position of  the  '.ankrupt.  Looking  at  the  circumstances  of  this  case, 
it  is  flitlicult  to  imagine  a  stronger  case  of  a  notorious  custom  —  noto- 
rimis  to  all  who  are  ac(iuainted  with  the  i)ractice  of  farming.  There  is 
here  mt  (jiiestion  uf  opposing  evidence  :  l)ut  the  jury  themselves  inter- 
jiose  in  the  course  of  the  evidence,  and  say  that  the  custom  is  so  noto- 
rioiis  as  to  make  the  evidence  unnecessary.  On  this  finding  it  must  be 
taken  tiiat  the  custom  was  known  to  all  who  might  be  prejudiced  by  the 
.ilipateiit  ownership,  and  that  any  one  who  was  about  to  give  credit  to 
a  t'ariaer  would  not  take  it  for  granted  that  all  the  cattle  he  saw  upon 
the  f;u'nier'>  land  were  his  own,  and  give  credit  on  that  footing,  l)ut, 
eonjeeturing  th;u  they  might  be  the  property  of  others,  would  exercise 
a  cnii-esijondiug  caution.  Two  cases  were  cited  to  us,  of  Thdj-kthwaitc 
V.  (Jnrk  ;uid  Knoivles  v.  Horsjnil.  The  former  of  these  is  not  an 
auihoritv  which  could  weiiih  for  a  moment  as  an  ar<fument  against  our 
present  decision,  foi-  there  was  there  no  custom  openly  and  expressly 
feuad  by  the  jury  to  be  notorious,  l)Ut,  on  the  contrary,  as  was  observed 
l»y  the  chief  justice,'  there  was  no  satisfactory  evidence  of  a  usage 
eiuiiitcrvniling  the  operation  of  the  statute.  The  case  of  Knmvlcs  v. 
II<n\if,iil  is  stronger,  and  entitled  to  much  consideration ;  but  the  decision 
is  there  put  chierty  on  the  ground  that  there  was  no  notice  to  the  world,  — 
nntliing  to  induce  persons  to  suppose  or  conjiH'ture  that  the  brandy  in 
qucNlion  might  be  the  property  of  some  other  person  than  the  bankrupt,  — 
lUMi  'hat,  to  take  the  case  out  of  the  operation  of  the  statute,  some  evi- 
drine  must  be  given  to  satisfy  the  jury  tliat  the  property  may  well  be 
^iip|)osed  to  belong  to  some  third  person.  It  is  to  be  (observed  that  the 
learned  judges  in  that  case  refer  to  the  custom  as  kno'-  '-•  bi  the 
'^in't'ade  at  Liverpool.  They  do  not  even  speak  of  a  custom,  notorious 
111  '  1  trade  generally,  to  leave  goods  pureliased,  for  a  greater  or  less 
'i'li".  in  the  hands  of  the  vendor.     We  must,  then,  suppose  that  such  a 


h 
IS 


:iTaiui.  I'.tl. 


;  5     /K;i 


It;/' 


■*  i3^k 


204 


IN    DIFFKIIENT    RELATIONS    ANM)    OCCUPATIONS. 


Banks  and  Banking. 


state  of  eircuinstaiu'os  as  we  have  before  us  was  not  present  to  their 
minds,  or  that  tlie  faets  did  not  warrant  tlie  (^onelusion  that  tlieic  existed 
any  sueh  notoriinis  eiistom  as  is  here  proved.  If.  liowever,  we  wciv  i,, 
suppose  sueii  a  notorious  custom  to  have  been  satisfaetorily  pr(i\c,i.  wc 
should  have  to  consider  whetlier  that  decision  is  not  opiJUM-d  t(;  the 
whole  course  of  recent  authority.  Without  relyinii' on  Ra  Terri/,-  in  the 
IJankt'uptcy  Court,  altiiough  that  case  was  decideil  by  a  very  Iimiik  il 
person,  of  great  experience  in  this  branch  of  tlie  law,  the  case  of  /*/■/,<- 
mall  V.  Loaegrove,"  in  conformity  witii  other  modern  cases,  estalilisjus 
that  wherever  a  custom  exists  so  notorious  that  it  may  be  ijresinncil  tn 
be  known  to  all  persons  engaged  in  the  business,  tiiat  the  buyer  sIkmiM 
leave  the  goods  bought,  in  the  hands  of  the  seller  for  a  certain  time,  ainl 
they  are  not  left  for  a  longer  time  than  is  clearly  within  the  (u.^tuin. 
they  an;  taken  out  of  the  reputed  ownership  clause,  and  the  liii\(  r  is 
entitled  to  recover  tiiem  from  the  assignees  in  bankruptcy  of  tiif  seller. 
The  i)resent  case  falls  within  that  description,  and  the  plaintiff  is  tlicro- 
fore  entitled  to  recover. 

PiGOTT,  li.  —  I  am  of  the  same  opinion.  A  notorious  ciisfom  has 
been  clearly  found  for  the  buyer  to  leave  the  animals  bought  in  the 
possession  of  the  seller:  and  that  being  so.  it  ap|)ears  to  nie  to  fall 
exactly  within  tlie  (U'sc'ri|)tion  given  l)y  Manskiki.I),  C.  J.,  in  Tliurhiii- 
vmite  V.  Gock^^  of  the  custom  reciuired  to  take  goods  out  of  tin-  repiiiiil 
ownership  clause.  It  is  "  such  a  custom  that  persons  dealing  with  ilu' 
traders  may  see  and  know  that  the  gotjds  may  pos.sibly  not  lie  the  prop- 
erty of  the  possessor."  As  to  Knowles  v.  Ilorsfall.  I  agn-e  with  \hv 
observations  of  the  chief  l>aron  upon  it;  and  I  will  add  that,  at  the 
time  when  that  case  was  decided,  the  struggle  of  the  courts  was  latlici' 
to  give  as  much  as  possiltle  to  the  assignee  than  to  discover  ihr  line 
owner. 

liula  diNcharycd. 


\  -!      1 


NOTES, 
r.  Ranks  .\xn  Baxkixc.,  axo  N'KiioTiAiu.K  axd  Assioxaiu.k  Patkr. 

Tin' t'ffiH't  of  usiiirc  upon  tho  laws  of  liaiikinu:  and  negotiable  and  !i--iiii;i')lc 
paper  is  discussed  lengthily  liy  tlie  Supreme  (Jourt  of  tho  United  Stales  In  ilir 
Icadiu'j.' ca-^e  of  R/'iuirr  v.  Ihink  of  Cnhdiihiii.*  In  many  subsequent  and  eiiiiii  i' 
cases,  similar  and  different  usa^'es  have  been  offered  In  evidence  to  CDiitinl  ilir 
lej^al  rules  applicable  to  tlie  particular  facts  and  to  alter  the  relations  ut  tin.' 
parties  under  the  circum.stauces. 


•  Svpra. 
-  Siijira, 


«  3T!uin.4!11. 

*  ;»  Wheat.oS'.!,  ante,  p.  110. 


BANKS    am;    banking. 


.'0.') 


Po\NL'rs  of  011ifi;rs. 


j  05.  Bank  Officers  —  Powers  of,  as  affected  by  Usage.  —  The  usage  of  banks 
in  ivsiHct  to  the  powers  and  duties  of  their  orHcers,  so  far  as  such  usa^e  is 
known  to  the  business  public,  enters  into  ami  (|iialifies  the  contracts  made  by 
siirli  banks  through  their  ottlcors.'  Where  the  ns:i'j;e  is,  that  in  the  absence  of 
tlir  cashier  the  president  signs  drafts  and  checks,  the  signature  of  the  president 
iiiiiUr  snch  circumstances  binds  the  bank.^* 


§  iKl.  Same  —  Power  to  certify  Checks.  —  In  Mussey  v.  Eaijle  Bank,^  a  case 
ofti'n  <  riticised  and  rarely  approved,  it  was  held  that  the  teller  of  a  bank  had  no 
iiiii' rent  and  implied  power,  by  virtue  of  his  olJice,  to  certify  chocks  as  "  jjood." 
Aii'l  tile  court  went  furtlier,  and  ruled  that  even  if  a  usage  on  the  part  of  the 
laticT  to  certify  was  proved,  it  would  not  make  the  power  inherent  in  the  teller 
aii'l  wonld  not  alter  the  ease.  This  was  eciuivalent  to  lio'ding  that  usage  could 
not  confer  on  an  ollicer  tin;  power  to  bind  llie  l)ank  by  certideatiou  —  a  tloetriue 
at  varianee  with  ail  the  otiier  adjudications  on  the  subject.  While  some  of 
tlic>c  expressly  (lei'lure  that  in  tht;  ofiice  of  cashier  the  jiower  to  certify  checks 
i<  iulicrcnt,  tliey  all  unite  in  tiie  opinion  thai  eillier  casluer  or  teller  may  so  act 
whii'c  it  is  the  established  custom  so  to  do.'  In  a  late  New  York  case  ■''  it  is 
sail!  of  Miis>ie>i  v.  En'jhi  Bank:  "Tiie  decision  was  made  over  twenty  years  ago, 
aini  lia>  not  been  repeated  by  the  courts  of  Massachusetts,  although  the  practice 
of  iisin'j;  certilleil  checks  must  have  prevailed  there  as  elsewhere.  It  has  l)ecn 
iv|iuiiialc(l  in  this  and  other  States,  and  sliould  not  at  this  day  be  regarded  as 
the  law  in  Massachusetts,  to  override  a  general  rule  of  construction  based  upon 
principles  of  the  common  law,  of  universal  application." 

Ut  ei|nal  anthoi-liy  to  MuKsey  v,  Ea.ijle,  Bank  is  an  early  Lousiaua  case,  where 
it  wa-i  lield  that  an  unautliori/j.-d  indorsement  by  the  cashier  of  a  bank  of  a  note 
bfloiiiiinu;  to  it  could  not  be  made  effectual  to  protect  the  transferee  by  evidence 
of  ii>a;ii'.'' 

§07.  Same  —  Proper  Officer  to  receive  Payments  or  Deposits. — Tlie  cus- 
tom of  tlu' bank  may  lia\c  nuieh  to  do  in  protecting  a  depositor  or  one  paying 
iiioiioy  to  an  oIliiiT  of  li'e  i)auk.  It  is  a  matter  of  common  knowledge  that  in 
lartre  cities  liie  iuties  of  banking  clerks  and  officers  are,  for  the  more  s|)eedy  dis- 
liatcli  Oi  business,  circ'uni>cribed  and  different.  Tliere  is  a  "  receiving  teller;  " 
there  !:<  a  "  iiaylng  teller."  A  demand  of  the  former  would  hardly  bind  the 
Ijaiik;  u  payment  to  the  latter  would,  ordinarily,  not  be  a  payment  to  tlio  i)anl. 


'  Whait.  on  Ag.,  §  U76  (ciiinj?  Jones  v. 
l':llo^,  4  .Mass.  'J^.");  \Vii|-er\  c.  .Mnnrou,  t! 
M.i-s.44;i;  Lincoln  IJaiik  r.  I'ajfo.'.l  Mass.  l.Vi; 
lilaiulianl  c.  llillianl,  11  .Mass.  s.j;  ^ma\\  v. 
Whitiiij,',  1-2  Mass  i;;  WhUwell  r.  Johnson, 
IT  Ma.-.  Ill);  City  liank  c.  tnt((!r,  :!  I'ick. 
U4;  llarironl  I'.ank  i\  .■slcilnian, :!  Conn.  IS!) ; 
^  iMl'Hi  I'.  I'.aiik, .")  Crancli,  .')■.! ;  llrenl  r.  liank, 
1  IVa.  S!i;  iJiiiik  of  Mi'lropnlis  r.  Uank,  1 
"<'«•. '.';!4;  I'oiio  V.  I5ank,r)T  N.  V.  l:il;  .Stiun- 
f'liil  liank  V.  Furris,  i;  Conn.  27Ji. 

■Whan.  <in  Ar.,  §  C")  .cilinK  Neilt'er  r. 
Bank,  I  Head,  UM:  I'alniev  r.  Vales,  :1  san<U. 
W).    Tlie  powcio  of  olUccin  of  eorpoialionsi 


may  bo  iniplicl  by  usage.    .Shiminel  v.  Erie 
U.  Co., .")  Daly, :;',)(). 

■■  >.t  Mete.  ;;o(i. 

•I  (jlirard  liank  r.  Rank  of  I'onn  Township, 
3(1  I'a.  M.'.IJ;  Willels  r.  rieenlx  I'.ank, 'J  Dner, 
1'21  ;  Kai'iiier.s',  etc..  I'.ank  c.  IJutchers',  etc., 
IJank,  11)  X.  Y.  lir, :  Meads  v.  Merchants' 
liank,:.".  N.  Y.  14;!;  Claike  National  Hank  r. 
ISank  of  Albion,  .52  Barb.  5:)2 ;  Meichanls' 
I5ank  r.  Slate  Hank,  10  Wall.  (104. 

Cook(i  (-..State  National  Hank,  .").'  .N.  V. 
96;  .10  r.arb.  ;i;iO. 

'■'  rniied  Slates  Hank  v.  Kleckner,  ^)  Mart. 
(I.a.)  ;5o'Ji  la  Am.  Dec. 3S7. 


IfTTT 


m 


: 


2ot; 


IN    DIU'KUENT    KliLATIONS    AND    OC<  ri'ATIOMS. 


t: 


u  ^ 


»lf 


Banks  and  Bankinii;. 


itself.  But  it  is  obviMiis  that  tlie  practice  of  the  bank  itself  in  form'. r  insi.iiico 
iniiilit  well  be  shown  in  order  to  render  valid  and  binding  upon  it  a  paymint 
under  other  ciiTum>fances  not  valid  and  bindiuEC.  Mr.  Monsi:,  in  his  •  xci  ll<  ni 
ti'eatise,  thinks  liiat  isolated  cases  of  a  contrary  practice  should  not  affi-cf  tin; 
rule :  that  solitary  instances  of  i)ayments  of  funds  to  another  officer  than  ttn'  dih- 
authorized  to  receive  them  are  impotent  to  alter  establi>!ied  prinei{)i(  s.  i;iit 
Mr.  MonsK  favors  the  liarsh  rule  which  requires  the  deposit  oi  paynicir.  to  Ik 
made  to  the  propiu'  oliiccr  at  the  customer's  peril,  and  which  several  adji'ljciii  ,i 
cases  sustain.^  In  one  of  these  cases  the  court  say:  "Tliis  is  confcs-ciliy  a 
hard  case,  but  such  cases  will  continue  to  present  themselves  until  men  sh.nl 
act  upon  the  maxim,  'Do  what  you  ouiilit,  hai^pen  what  may.'"  -Vu'l  .)f  ■  ,. 
remaining  three,  two  at  least  have  been  practically  overruh.d  by  i/,,-'  /.'  -  ■ 
National  Bank  v.  Gove,'*  where  a  better  doctrine  is  announced  by  the  Nt'V  Y<iik 
Court  of  Appeals:  "Banks  tnust  be  held  responsible  for  the  conduct  of  tln'ir 
officers  within  the  scope  of  iheir  apparent,  authority.  When  oj.e  i;oes  iLto  ;i 
b:ink  and  finds  behind  the  counter  one  of  its  ofHcei's  employed  in  its  bii-^'.u  >-, 
and  upon  his  demand  pays  a  debt  due  the  bank,  in  sj;ood  faith,  wit'  ',,ir  iv.w 
knowledge  tliat  the  officer's  authority  is  so  limited  that  'k.  hi.>  ni-  .ijiiit  tu 
receive  it,  he  must  be  ()n)te(;ted,  and  the  bank  mu>t  be  bound  by  thi  payiiuMt." 
In  the  light  of  this  authority,  it  can  hardly  be  doubted  that  .any  evidence  of  tin- 
custom  of  other  officers  uiiih-'r  such  circumstances  would  be  t. inclusive. 

And  the  question  wlietiier  a  transfer  of  shares  to  a  casliier  ^'ests  the  legal  title 
thereto  in  the  bunk,'  may  be  made  plain  by  proof  of  usage. ^ 

§  G8.  Banks  —  Negotiable  Paper  —  Usage  as  to  Demand  and  Notice.  —  T!i' 
usages  of  banks  as  to  demand  and  notice  govern  "and  make  valid  I'cis  ii!l,rr- 
wise  invalid  —  as,  a  notice  by  mail  where  the  party  lives  in  the  same  t'  vn  '  ;n!'l 
where,  in  the  absence  of  such  a  usage,  the  notice  wouli'.  be  ins'dficient; "  "r  :i 
notice  on  a  day  earlier  or  later  than  the  legal  day;  *  or  a  demand  of  p:i.  ;nini  >iri 


'  Morse  on  Banks,  51. 

2  Manhattan  Co.  v.  hydig,  4  Jolin.s.  'Ml ; 
Thatcher  c.  T5aiik,  .5  Sanilf.  121;  Sterling  r. 
Marietta,  etc.,  Tradnig  Co.,  U  Serg.  &  R.  IV'J; 
TervoU  f.  Itranch  Bank,  12  Ala.  oOi. 

■■>  57  X.  Y.  .V,)7. 

■•  New  lOiiglaun  Marine  Ii  '.  ('■.  r.  Chand- 
ler, Ifi  Mass.  ■>">:  FaU'UelU  ,-.  Adams,  16 
Pick.  .Wl. 

i  .Stamford  IJank  v.  Ferris,  17  Conn.  259. 

«  Hartfonl  Bank  v.  Stedmnn,  H  Conn.  489: 
Bowen  c.  Newell,  5  Sandf.  liiti;  !-o\vis  v. 
Phinler.s'Bank,;!  How.  (.Miss.)2r.7  ;  I'lanters' 
Baiikf.  Miirkham,  .j  How.  (Miss.)  :ii'7;  Com- 
mercial, etc.,  Itaiik  r.  llamer,  7  How.  (Miss.) 
t4S;  Warren  lJ:ink  v.  Parker,  S  Gray,  lil; 
Hulls  V.  Howell,  Harp.  427;  Boston  IJank  e. 
Hodges,  0  Pick.  420:  (ioilden  v.  Sliii)ley,  7  B. 
Mon.  .170;  Widgory  c.  Manroe,  6  Mas.s.  449; 
Lincoln,  etc.,  Bank  r.  Page,  0  Mass.  1.55;  6 
Am.  Doc.  ."i2;  Piridgeport  Bank  v.  Dyer,  19 
Conn.  131!;  Cohear.  Hunt, 2  Smed.  &M.  227; 


Kilgore  V.  Bulkley,  14  Conn.  :»!7;  Haywo"! 
V.  Pickering,  L.  It.  9  Q.  B.  4-'-;;  Isii.un  r. 
Fox,  7  Ohio  St.  :$17;  Trask  v.  .Mariin,  1  K.  I). 
Smith,  505.  But  see  B;..ik  of  .Alexandria  r 
Deneale,  2  (M-anch  C.  Ct  488;  J:u'k;nn  ,■. 
Uni(»n  I!ai)k,  f.  Har.  &  J.  -It). 

'  Chioopee  Bank  v.  K:  «ei-,  9  Mtf.  j^; 
Ginch-at  v.  Mechanics'  i;.ink,  7  Al;i.  "-•>'■ 
Grinnan  v.  Walker.  9  low:.  426;  Bcli  i'. 
Hagcr.stown  Bank,  7  Gill,  2'J7. 

-  Forbes  v.  Omaha  National  Bank,  II 
Cent.  L.  J.  209;  Ireland  c.  Kip,  lO.Ji.hn<.  4!'i': 
s.  c.  11  Johns.  2:n  ;  Sheldon  v.  JU'iiliiiiii.  1 
Hill.  129;  Uansom  y.  .Mack,  2  Hii:,  .W;  She' 
hunie  Falls  National  BanV-  r.  Townsley. 
102  Mass.  177;  .State  Bank  < .  Ivowell,  6  Man 
(N.  S.)  267. 

"  Blanchard  v.  Hilliard,  11  M.iss.  S.");  Join- 
V.  Fales,  4  .Mass.  245;  Piciic  r.  liutler  H 
Mass.  303;  Wood  ».  Co:-1,4  Moti',. -'iCs  Taun- 
ton Bank  V.  Uichardsoii,  •'>  Pick.  436 


'  Bank  ol  Columbia  r.  Mafrrmlor,  ti  IIm!\  & 
J.  17.2;  r.nnk  of  Coluniliia  r.  Fit/liiigli,  1  liar. 
&(.;.i;«t:  Patriotic  liank  r.  Fiiniiurs'  liauk, 
:  CniMi'li  (;.  (Jt.  5r.O:  I'.aiik  of  \Va>liiii;iIon 
v.  TriiiliMI.  1  Pet.  '25;  MiM-  r.  Hank  of  the 
UiiiliMl  -  ;i!,>.j,  n  Wlii;al.  l:;i  ;  Kaborg  r.  bank 
Of  Ciilir.iil,.i:i.  1  liar.  »V  ti.  .'.;!. 

-  Cily  IJank  r.  Cutti-r,  ;i  I'ick.  4U. 

''  Smiili  r.  Wlilting,  1'.'  Mass.  6. 


*  VVhitw  ell  V.  Johnson,  17  Mass.  441). 

6  IJront  I'.  Bai-.k  of  the  Metroi)olis,  1 
Pet.  8' I. 

'■  Weld  V.  Gorham,  10  Mass.  366.  And  see 
llotchki^s  V.  Arlisans'  Bank,  42  Barb.  ."ilT. 

■  .Marrett  r.  lirai^kett,  60  Me.  .5it.  And  see 
Overman  r.  lloboken  City  Bank,  30  N.  J.  L. 


61. 


«  FarmerH'  Bank  v.  Duvall,  7  Gill  &  J.  78. 


liii^:!; 


MHiOTIAni.i:    I'Al'KR. 


207 


Demiiud  aiul  Notice. 


the  fourth,  iii><liMil  of  tlu'  iliinl  day  aftor  due;  '  or  on  the  day  |)revious  to  what  is 
nut  a  It'Ltal  holiday;''  or  an  incorrect  di'scriptlon  in  the  notice  :  ■'  or  a  demand  on 
t!i(  maker  without  presenting'  tlie  note  to  iiiiii:  *  orat  tliebank  where  neuotiated, 
ami  not  on  the  indorser  personally ;  ^  or  anolice  intended  for  a  director,  but  left 
;i,  the  bank  upon  the  cashier's  desk.''  .\nd  tiie  usa^e  of  depositors  in  certain 
iiaiik^  to  deposit  checks  on  the  same  or  tlie  next  day  after  the  day  on  which  they 
\veiv  received,  and  of  the  bank  immediately  to  return  any  chocks  from  the 
"  clcarin;;-house  "  which  tlie  bank  has  not  funds  to  cover,  ia  recognized.' 


;    li 


i: 


i 


I 


§1.!).  Same  — Demand  always  necessary.  —  But  thonirli  a  demand  may  be 
mii'le  '>n  the  fourtli  day  instead  of  the  third,  or  earlier  than   the  third,  if  in 
i.'.'conlance  with  cnstoin,  it  is   nevertheless   necessary,  it   would  seem,  that  a 
d'uuvid  be  made  then;  and  the  omission  of  tins  recpiisite  cannot  be  excused  by 
u>ai:e.    Tlius,  in  a  .\[aryland  case,'*  a  witness  tesiiii.d  that  he  servetl  on  the 
(ha A'cv  a  written  notice  in  the  usual  form,  statin^'  when  tiio  note  was  due  ;ind 
Ilia*;  be  paid,  and  that  he  left  the  notice  with  the  drawer,  as  wa<  the  cu>tom  in 
su'jii  cases.     Rut  the  Court  of  Appeals  held  that  this  was  not  -ui'icient.     "  It  is 
•  ipposed,"  said  Ai:('iii:k,  J.,  "that  this   laniruaue  of  the  witiu'ss   constitutes 
('.  i<lciici:  of  a  nsaire  on  the  i>art  of  the  bank  to  make  demand  of  payment  at  a 
tliiie  and  under  circumstances  different  from  the  lieneral  rules  of  law,  and  that 
i'i!i(;tcy  should  I)e  given  to  such  usaue,  if  foiunl  by  the  jury,  so  as  to  validate  as  a 
(Itinaiid  tiiat  wliich  -without  such  a  usag'e  would  be  a  nidllty.     In  the  view  which 
we  take  of  tlie  evidence,  it  is  immaterial  to  examine  the  question  as  to  tlic  legal 
I'ft'i'Ci  of  such  usage,  if  established,  because  we  consider  that  the  witness  proves 
no  usage  bearing  on  the  question  of  a  demand.     The  only  conclusion  which  can 
be  drawn  from  the  evidence  is,  that  it  is  the  practice  of  this  bank,  as  it  is  of  all 
bank*,  to  give  notice   of  the   falling  due  of   notes,  that  the   ])arties   may   be 
..,il'i';>e  I  not  only  of  the  holders  of  the  notes,  but  renunded  and  admonished  of 
the  near  apnroacli  of  the  time  for  tlie  payment  of  their  liabilities.     The  witness 
does  not  state  tlu;  existence  of  any  usage  to  tre;it  this  common  notilication  as  a 
substiliite  for  a  legal  demand  on  the  holder.     The  rule  established  is,  on   the 
coiurary,  perfectly  consistent  with  the  necessity  of  presentment  for  payment 
when  due,  and  in  the  accustomed  legal  mode.    *    *    *    The  plaintiff  should  have 
^oni'  fmtiier,  and  lU'oved  that,  by  the  usage  of  the  bank,  denuuids  against  the 
drawers  of  notes,  in  oivler  to  charge  the  indorscrs,  were  always  made  by  the 
alleuvd  notification  on  the  day  notes  first  fell  due,  instead  of  being  made  accord- 
lij;  to  the  ru'.t-  of  law,  and  that   >i!ch  ncjtice  was  by  usage  a  substitute  for  the 
lawful  demand.     In  such  a  state  of  fact';,  the  question  would  have  been  brought 
before  the  court  how   far,  in  point  of   law,  such  a  notice  could  operate  as  a 


H 


s^. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


k 


A 


/. 


fc 


1.0 


I.I 


11.25 


V 


'^/ 


Hiotographic 

Sciences 
Corporation 


23  WIST  MAIN  STRIET 

WnSTIR.N.Y.  Msao 

(716)  873-4S03 


iv'^*^ 


\ 


^ 


iV 


v> 


^ 


^\  Wk\ 


'^ 


^  <fi^ 


^.<k 


a 


¥ 


o 


2»)« 


IX    DIFFEKENT    KELATIONS    AND    OCCUPATIONS. 


Negotiable  Paper. 


deiiiaiRl."  '     And   uinTe  <hie  presentment    {icconliny;  to  law  has  been  made    a 
mercautilu  usui^e  to  uiako  it  in  a  different  way  is  irrelevant." 

§  70.  Same  —  Discordant  Decisions.  —  Tliere  are  some  cases  which  seem,  at 
first  glanee,  to  cuiilllct  with  the  rule  tiiat  Llie  customer  is  presumed  to  iiLTuc  Id 
the  usages  of  the  banli.'  Piscataqua  Excluimje  Bank  v.  Carter,^  decided  In  Xcu 
Hampshire  iu  1850,  and  Central  Bank  v.  Davis,^  which  arose  in  .Massaehiisctu  iu 
1873,  were  alilie  Ijotli  in  facts  and  result.  To  a  suit  against  the  indoi-c  r  of  a 
note,  tile  reply  was  that  no  notice  or  demand  had  been  given  as  required  liv  law. 
It  appeared,  however,  that  it  was  the  well-known  usage  of  the  bank  to  iviiniic 
the  indorser,  iu  sucli  cases,  to  make  demand  and  notice  on  the  7i(jt(;.  No  •*u(li 
written  waiver  appeared  on  the  note,  and  it  was  held  that  the  usage  could  not 
prevail.  The  court  s;  'd  that  parol  evidence  of  usage  was  not  aduiissiblr  for  ilic 
purpose  of  varying  t  •  litteu  contract  of  indorsement,  and  also  that  the  i\>iv^r 
proved,  being  a  usage  for  thj  customer  to  make  a  certain  agreement,  -^ouid  nut 
affect  a  transaction  in  w]  '.  'x  i  uch  an  agreement  had  not  been  made.  Ujioii  iiic 
second  ground  tlie  doei-  is  n  tiiese  eases  may  be  sustained,  but  not  upon  tlic 
first,  which  is  e.,uivuleu    V^-  saying  that  a  usage  cannot  add  to  a  written  couiract. 

§  71.  Usage  and  Days  ol  Grace.  —  All  bills  of  exchange  or  ncgoti  ibh-"  notes 
not  payable  instantly  are  entitled  to  days  of  grace."  A  eiieck,  being  pa\al)lc  on 
demand,  is,  therefore,  not  entitled  to  grace.'  It  has  sometimes  Ix'cd  aiicMipiiil 
to  alter  this  rule  i)y  evidence  of  a  different  custom.  In  Woodruff  v.  MitcIuwIs' 
Bank,'^  the  i)ai)er  was  in  tliis  form :  — 
«'$1,.")00.  Dktkoit,  November  15,  18,18. 

"Sixty  days  after  date,  pay  to  tlie  order  of  Danicd  Green,  Es(|.,  tlftceii  luindi'cd 
dollars,  at  tlie  I'huL'ni.x  Hank  in  the  city  of  New  York,  value  received,  which  piaii' 
to  account. 

"  Your  ob'd't  serv't,  L.  (tonn.vKO,  Detroit,  Midi. 

"To  Wm.  II.  (friswold,  I':sq.,  cashier  Oakland  County,  Micliigan." 
It  was  contended  thai  accoriling  to  tlie  custom  of  tmnkers  and  inercliant.s  in 
New  York  tins  was  a  clieck,  and  was  not  entitled  to  the  days  of  grace  allowed  on 
promissory  notes  and  bills  of  exchange.  But  tlie  Siipreine  Court  said:  "Tlio 
effect  of  the  proof  of  usiisje  as  given  in  tliis  case,  if  sanctioned,  woiihl  lie  to 
overturn  the  whole  hiw  on  tlie  sui)ject  of  l)ills  of  exchange  in  the  city  of  New 
York.  We  need  scarcely  adtl,  even  if  the  witnesses  were  not  niislakcii,  and  tin' 
usage  prevails  there  as  testilled  to,  it  cannot  be  allowed  to  control  the  settled 
and  acknowledged  law  of  the  State  in  respect  to  this  description  of  painr." 
In  .Iforrison  v.  Bailey,^  the  paper  was  in  this  form :  — 
«'  $;;00.  Clkvki.am),  O.,  June  ;!o,  l-^.vi. 

"  Wicks,  Otis  &  Brownell:  Pay  to  L.  F.  Burgess  on  the  IStli  day  of  Inly,  ':>i, 
or  order,  three  hundred  dollars.  It.  li.  Uau.kv." 


I        t 


>  See  al.<>o  Itorup  r.  NIniiigcr,  5  Mlnii.  6'li. 
»  Klockninp  r.  Meyer,  !S  Mo.  App.  144. 
'  See  ante,  Oliap.  1.,  $  23. 
♦•JOX.  II  -Jlti, 

»  i:t  Pick.  ;i7;i. 

«  Ill-own  V,  lliiiTudcn,   I   Torin  Uep.   118; 
Cook  V.  Darling,  -i  U.  I.  3So ;  llruwii  r.  husk,  4 


Yerg.  210;    DanieU  v.  Kylo,  1   Kully    (ia.), 
304;  Woochaiir  r.  McrcliiliUs'  Uiluk, '^iJ  WunJ. 

>  Dun.  Neg.  Inst.  .507. 
»  a.-)  WonU.  073. 
»  5  Ohio  St.  13. 


IJAMvrt    AND    l;A^K1^0. 


2uy 


Duties  of  CollocliiiLi  Apjonts. 


Tlie  testimony  of  a  number  of  bankers  Hliowed  a  uniform  custom  on  tlieir  part 
ill  (;!ii'veliind  to  reij;ard  drafts  in  tliis  form  as  checl<s,  and  not  entitled  to  days  of 
iracf.  Hut  tlie  Supreujc  Court  of  Oliio,  foliowiuj;  Woodruff  v.  Afi-rc.hanls'  Hank, 
lield  tliat  "any  supposed  usa-^f  of  bauits  in  any  particular  place  to  refjard  drafts 
upon  tUem,  payable  at  a  day  certain  after  date,  as  checks,  and  not  entitled  to 
days  of  firace,  is  inadmissible  to  control  the  rules  of  law."  '  On  the  other  hand, 
ill  IVnusylvania  it  is  lield  tliat  in  order  to  carry  of  the  understanding  of  the 
business  community,  evidence  of  such  usage  should  be  admit  •  d.' 


Mi  t;r:  J 


\ 


li 


m 


§72.  Duties  of  Bank  as  Collecting  Agrent.  —  A  bank  receiving  a  check  for 
collection  has,  according  to  the  general  common-law  rule,  until  the  close  of 
banking-liours  on  the  ne.xt  business-day  in  which  to  present  it.'  IJut  it  is  clear 
that  a  general  usage  to  pre.-<(;nt  it  within  a  shorter  or  a  longer  time  would  qualify 
this  rule,*  provided  it  were  general  and  well  understood.' 

A  custom  among  banks  of  transmitting  bills  and  notes  from  each  to  tlie  other 
for  collect  ion,  and  when  i)aid,  of  passing  the  proceeds  to  the  cretlit,  of  the  bank  so 
transmitting  I  hem,  and  to  tlu'  debit  of  the  bank  so  receiving  them,  cannot  affect  the 
claim  of  a  third  person  to  the  proceeds  of  a  bill  which  he  has  (H)miiiitted  to  one 
of  tliein  for  collection."  Wlu'lhcir,  when  a  note  is  sent  to  a  bank  for  collection,  tlie 
duty  of  making  a  deiiiind  on  the  maker  can  be  delegated  by  it  to  a  notary  so  as  to 
relieve  the  bank  from  all  sul)se(iuent  responsibility,  is  a  question  u|)ou  which 
have  arisen  diverse  rulings.  In  New  York  it  has  been  held  that  the  bank  remains 
ivsponsililc ; '  in  I'enu.sylvania  and  [..ouisiana,  that  if  the  bank  has  exerc'sed 
|)i'i)|)i'r  care  in  the  selection,  its  liability  is  at  an  end;  *  in  Mussachusetts,  proof  of 
ausuiZf  of  business  on  the  part  of  the  bank  is  consiiliMcd  to  settle  tlie  (juestiou; ' 
wiiilc  in  New  York  no  contrary  usage  can  affect  the  bank's  liability  in  such  cases.'" 
And  tiioiigh  a  bank  to  wliom  a  note  is  sent  for  collection  need  not,  as  a  matter  of 
law,  nt>lily  all  the  iiidorsers,"  yet  such  a  duty  may  be  cast  upon  it  by  usage  and 
custom.'^  Till'  rule  that  where  commercial  paper  is  placed  in  a  bank  for  col- 
lection the  title  thereto  does  not  pass  to  the  bank,  nor  does  it  become  tlu; 
cu.stoiiier's  debtor  for  the  amount  until  the  collection  is  made,  is  not  affected  by 
a  practice  of  tlie  l»ank  allowing  customers  to  draw  against  such  deposits  before 


««. 


'  But  sec  liiiweii  v.  Newell,  13  X.  Y.  2",»0; 
l.,iwsi)ii  V.  ItichiinlH,  ()  I'liila.  17!»;  Ohainpion 
f  tiiinlon,  70  I'a.  St.  47ti;  Mintuni  i'.  h  islier, 
(Cul.  :i5. 
Ihid. 

I!l<'lifi)r(l  r.  ICidKc,  2  (lamp.  r);i7;  Monlo 
'  llriiwii,  4  ISiiijj.  N.  V,  i\\{\;  ISodilinjfliMi  v. 
^'hleiicker.  4  Iliirn.  A  Adol.  7r)2;  Ak^xaiider 
f  l!uir.hneld,7Mun.  AO.KHil :  Man' r.  ircnty, 
1»(\  It.  (V.  s.)(i.V 

"  Hoddimrtdii    r.   Scliloni'kiM-,   4    Karii.   A 
Aili.l.  7.VJ:  \l(,r>e  on  Hanks,  .ii:!. 

Itii'kf.piil  r.  l:id«c,  2  Camp.  .Vi7;  Mohawk 
lliinkr.  Iti'Dilciicli,  1.1  Weiid.  I:;.;. 

"  Lawrence  t>.  .SUmington  Itank,  H  Conn. 
3il. 

■  Alton  r.  Mercliants'  Hank,  2'.'  Wend.  iiri. 
'  HaUlwin  c.  Uuak  of  l.onirtiana,  1  La.  .\n. 


I:t;  Ilelleinire  v.  iiank  n[  the  li'niled  States,  4 
Wliaii.  lo.-.. 

■  Warion  Hank  c.  Suffolk  I'.ank,  10  ('u.-<li. 
6S'2. 

'"  A\  iHult  V.  I'uelllc  Hank,  47  N.  V.  570. 

'  llayncs  V.  Herks,  :i  Ho.s.  &  L'ul.  .V.Ki;  Hi>.nk 
of  .Mobile  V.  lIugKinn,  Ii  Ala.  'JO(i,  Hrancli 
Hank  r.  Kno\,  I  Ala.  14S;  I'lilpps  c.  Mdlbniv 
Hank.H  Meliv  7!t;  Coll  r.  Noble,  ,'»  Ma.ss.  1(17: 
Kai^'le  Hank  i'.  (  liapiii,  ;<  I'lek.  ISO ;  Hank  of  tilt! 
IniltMl  .Slates  I',  (ioddard,.'")  Ma.'^oii,:!i;i;,  Slate 
Hank  r.  Hank,  41  Harb.  :U:l;  .Mead  r.  i:nK>,ri 
Cow.  :io:i,  Howard  r.  Ives,  1  Hill, '.'(1:1 ,  Hank 
of  the  IJniU'd  .siuIch  r.  Davis,  '1  Mill.  l.M  ; 
SpiMiftir  I'.  Hallon,  is  .N.  Y.  327;  Hariuer" 
Hank  v.  Vail,  21  N.  Y.  4S,'>. 

'  StiiedCH  >-.  Ituiik  of  L'liua.'iO  .Iotin>.  172, 
:lCow.a(12. 


14 


t     ^ii, 

id 


210 


IN    DIFFEKENT    RELATIONS    AND    OCCUPATIONS. 


il! 


Banks  and  Bankin;:;. 


\lm 


:)    .' 


I'   '1 


the  collections  have  acfually  bfcn  mado.'  A  bank  actinc;  as  the  collcctini:  aui  n' 
of  aiiothor  lias  n<»  riiiiit  to  receive  in  payment  anytliinv;  lint  iiniiicy.  If.  iii-:,,!,! 
of  money,  "  takes  a  ehee.k  and  surrenders  llic  paper,  it  assunuis  tlie  i  -;.Mmi. 
bility  of  I  lie  paper  beeoniinj:  flood,  and  if  it  turns  out  otherwise  it  is  liah  ■.• 
But  i*  'nay  prove  as  a  defence  a  usajie  to  act  in  this  manner,'  though  Mr.  .Miikk 
says:  "It  maybe  doubted  whether  it  would  free  a  banker  from  liabilii\  if  in.. 
should  simply  show  a  fre«|in'nt  habit  of  parting  with  paper  upon  rcc.ivin-  ihr 
check  of  th(!  debtor,  orwhellier  he  would  not  have  to  f?o  further,  and  show  ]„,<]- 
tively  that  it  was  uuili  rsiood  in  all  such  transactions  that  the  banker  disciiaiu'i  'i 
his  full  <luty  to  'iie  customer  liy  so  doinfj.'" 

§  73.  Payment  by  Bunk  must  be  in  good  Money  —  Usage.  —  Wliere  a  lian\ 
receives  a  <u;n  on  a  u'  tiera  <lep<).»;it,  it  is  bound  to  respond  to  llie  de|in>ii,ir. 
when  called  on,  f<./  ;.  like  sum  in  jjood  money.  "This,"  .says  Mr.  M')!;-.| . 
"has  been  vepeatciily  lield  in  the  Western  States,  where  bank-bills  of  the  sn- 
called  '  wild-cai, '  liunks  were  deposited  and  credit  sriveii  for  the  nominal  valiK 
in  dollars  and  cer.ts.  FM'(piently,  the  depreciation  oi  llicse  bills  hail  beirmi  ;u 
the  time  of  dejiosil.  often  they  had  sunk  alinoM  inimeiliatcly  afierwan!-. 
thr«)Ugh  every  suige  of  dipreciatioi',,  to  utter  worthiessness.  But  the  eoiirl- 
uniformly  held  tliat  tlieereilit  uiven  (or  so  much  money  could  only  he  discliMi-ii . 
by  so  mu(  h  money,  and  that  bills  similar  to  those  re(reive<l,  or  even  tiie  Idiniii  i 
ones,  could  ;  be  torced  upiiii  the  customer  in  payment.""  So,  wliere  i  c 
deposit  was  ii  ^ie  in  bills  oi  the  bank  itself,  and  tliey  were  at  the  tiiin  -k  ;iii 
depreciated,  ii  was  held  that  payment  must  nevertheless  be  made  in  full  in  :;cm>., 
money.'  In  Mirinc  limtlc  <>f  Chungo  v.  Clinndler,^  the  defendant  asked  the  IdI- 
lowiuf?  instruction,  which  was  refused:  "If  tiie  jury  believe  from  the  evi(hinv 
that  it  is  the  usa^e  and  custom  of  banks  and  bankers  to  min!j;Ie  ail  I  he  IiiikN 
received  by  them  in  a  < onimon  mass,  and  that  according  to  such  iisaL'f  lii'' 
defendant  mixed  tiie  funds  received  on  account  of  plaintiff  vvitli  its  own,  ami 
that  its  own  funds,  wiLli  which  plaintiff's  w<!re  minuled,  were  coiiiiiosed  ol  ilr 
notes  of  the  banks  of  Illinois  receiveil  by  it  in  its  ordinary  course  of  hioim  >- 
for  itself  and  its  (customers,  which  were  afterwards  dejireciated  in  value  tnini 
causes  not  witldn  defendant's  cimtrol,  then  the  loss  by  such  deppciation  in 
defendant's  funds  must  fall  on  him."  In  afllrminir  the  ruling  and  verdict  In  h'u, 
Wai.kku,  .).,  said:  "  Nor  can  the  special  custom  of  l)anks  in  a  particular  locidiiv 
chaniie  the  laws  of  the  land  resulatin^t  the  value  of  the  currency  and  tixiii^  li 
standard  valui  of  tin  >  iirrent  coins.  That  parties  may  coidract  to  reicive  ai  \ 
commodity  in  lieu  ol  money,  in  payment  of  indebtedness,  is  undeniably  trm  . 
This  can  only  be  done  i)y  spi'cial  iiirreement,  and  not  by  usaire.  No  ciisloin  >■■  ii 
compid  a  (^'editor,  in  the  absence  of  a  sjiecial  ajireeiiieiil,  to  receive  aii\lliin.: 
but  tlie  constitutional  currency  of  the  country.  The  fact  that  the  business  nun 
of  a  particular  place  liav«;  been  in  the  haliit  of  receivinjj  depn; 'iaied  papri 
money  in  payment  of  tlieir  <ieniands  by  no  means  provtis  tliat  all  crediior.-   a 


1  (tiles  71.  IVrluns,  •!  Ki«t,  12 :  Scott  r. 
Ocean  UnnU,  >1  N.  Y.  JS'.I. 

'■'  ('(iiiiiiUM'i'iul  ltanl\  r.  ilnioii  Can!;.  1 1  N.  Y. 
20:1;  I.ovy  r.  Niilimial  Itaiik.  7  (V-nl.  I-  ,1.  iW 

■  lUiHMell  r.  Ilaiiiu'v,  li  'l'«nn  Hup.  I'i;  Levy 
c.  N.'ilioiial  Hank,  sH/tnr 

•  Moi-e  r)n  H;inl,v.  \'>.\,  /,/.  6'.> 


■  Corliitl  r.  Hank  of  Sniyinu,  1  lliiii.  (!''  1  ' 
■l.\:>:  Maiuw  Itaiik  v.  Itii-liniini-.  J"  111.  i'": 
l'"i>i'l  r.  Hunk  of  Cape  Kear,  1  I'hill.  I,.  117; 
Marine  Hunk  v.  Ogcjen.a'.i  III.  -MS;  Wilhl!-''. 
I'aliiu,  4;<  111.  41.1. 

■  Hank  of  ilic  Coniinonwenllli  v.  \Vi-l'i'.'.i 

ivi.;itH.  ••  r,  III.  .vjii. 


;U! 


BANKS     AND    HANKING. 


211 


I'avincii' 


that  loi'jilit.y  'ij  c  !i}?rced  to  receive  tlit  -  imr,  iiiucli  less  u  prr>oii  rosidinu;  hun- 
dred of  miles  distiuit.     To  tiinc   Muii  iiii   t'tfect,  A  spcoliil  u'irt'eMiieiit   must.  I>e 
liroveil.'     S",  ill    Tliompson    v.  liujijs,-  Mie    pliiintiff    liiid    for  ii  horios  of    years 
ii.|)iisite(l   i.'oin  and  paper  money  witli    liie   defondant,  a  hanker.     V,o\\\  at    the 
time  had  one  value,  and  paper  money  anoliiiT  and  ie<s  value,  and  Ihe  ditfeniit 
(Icpisiis   were  entered  in  ids  pass-book  as  "coiii"  ami  "  paper  "  respectively. 
|i(t)ts  l)ein<^  at  tliis  time   payaljlc  in  "coin"  only,  tlic  banker    re(iiu!sle<l   the 
pliiintiff  to  miiko  hi.s  full  lialaiict!  coin,  widcli   wiis  done.     SuhstMpu'iilly  an  act 
was  piissed  makiiii;  certain    treasnry-nole>    lawlul   money   for   tlie    payment  of 
(l(l)ts.     The  plaintiff  continued  depositing  "fuin"  iiiid  *' treasury-notes,"  tlu'ii 
ripvi-iird  as  currency,  and  both  were  entered  aeeordinjily.     lie  afterwards  drew 
(or"<()in"  the  l)iilk  of  liis  coin  balance  deposited  ix'fore  tlie  act.     Coin  wtis 
V'fiised,  and    tender    made    of    tnasury-notes.     In  an    actioii  l)iMii,nhl.    for  tlie 
market  \alu<!of  the  coin  drawn  for,  the  tellci  <^f  the  bank  liaviuu  lestiliid  iliat 
JifltT  the  act  inakinii  ticasury-noles  a  Ic::al  tender  hi-<  <'mployer  uniforml',  made 
Willi  customers  depositinjj;  with  them  a  difference,  in  receixiii;^  and   pay  in;;  llieir 
(li.'po>.its,  between  coin  and  i)iiper  money,  and  in  all  case-  when  the  tleiio>-it   was 
ill  coin  they  paid   the  chettks  of   their  cnsininers  in  coin  when  they  (!ail<il  for 
coin,  otherwisi' treasury  or  bank  notes,  the  plaintiff  offered  evidence   to  ^liow 
tliat  the  usaije  and  mode  of  dcMlinn   between  the  sai'i  parties  as  stateii   by  the 
t<ller  was  the  nsa;je  of  all    the  hiuksii   that  place.     Tlii.s  evidence  was  eonsid- 
I'lvd  in  th(!  Supreme  (;(»urt  ot  the  United  States  as  properly  rejt^cted.     "The 
;;cinral  rule  of  Law  i^,"  said  .Vlr.  .Instice  (,'i,ii«'k<>ku,  "  that  if  a  merchant  deposits 
iiiiiiii  V  with  a  bank,  the  title  to  th<     .loney  passes  to  the  bank,  and  the  latter 
lii'ionii  s  the  (hditor  i>f  the  mercham  to  that  amount ;  ami  it  is  not  perceivi'd  that 
thccvitl 'iiee  offered,  tf  it  had  l)cen  ailmitted,  could  havi-  had  any  other  effect  than 
to  coiit,.ii   Mu;   sren(;r:d  rule  of    law,  as   it  i>    not  pretended  that  the  evidence 
slioweti  ,;  special  deposit  or  any  special    loiitaci       Viewed  in  any  llirht   con- 
sistiiit  with  the  other  evidcMice  in  the  record,  the  testimony  was  oitlK.'r  entirely 
iniiii  ii(  rial  or  inadmissible  as  tending  to  coiilrMl  the  well-settled  rules  ol    law."* 


<i  74.  Same  —  Payment  of  forced  Check.  -  In  re;iard  to  the  ()ayment  by  a 
bank  of  a  forficd  check,  the  licneral  rule  is  that  ;iie  banker,  beinu'  bound  to 
know  the  sinnatiin'  of  his  <'ustnmer,  will  make  ^iieh  a  payment  at  his  peril.* 
How  far  this  rule  may  be  iiffet-ted  by  iisav;i!  is  shown  by  the  Ohio  case  ol  EIHsv. 
oltiiiljf,  liiMd-iiiii I  :iiil  7'nixt  Voinjtitni/.'  (»n  the  trial,  evnieuce  was  introduced  of 
a  custom  at  that  p.H  •    lur  the  cashier  t)r  telh  i  of  !i  bank  to  whom  a  check  -Irawo 


n(.\ 


'  sp(.  Ills.)  Miirhii!  Maiik  v.  ISii  ncv,  is  III. 
'JD;  cliiia;;!!,  clc,.,  Inn.  Co.  v.  (;ur|icnlef,  '2« 
III.  MV<. 

■ .')  Wall.  («'.:!. 

■'  Sfo  aJHi)  ('liC8n|»!ake  H;,  ik  r.  .Swain,  ■_".• 
Mil.  m. 

IViif  I).  Neale,  .»  Ilnrr.  i:U");  Jcmivn  <•. 
fnwlcr.'.'stra.'.ktit;  Wilkinson  v.  l.iilwiiiK«,  I 
'^•la,  i.»-i;  Murlier  r.  (iinj,'i.'ll,;{  Kk|).  tiO;  Mnilli 
'•.  Clif-icr,  1  Diirnf.  *  K.  tWi;  Hass  r.  rlivc, 
<Mn,i,  ,ts,  13;  Koi-Hlcr  «.  l-'lc'ini'iils, 'i  i '.-m  p. 
I":  '•lailli  ,'.  Moicfi-,  ti  Tuiin.  7ti;  Vounj?  v. 
^'tiMi-,  r,  MiiHs.  i,',7;  Maiklii  r.  Ilulliilil,  i 
Jiilnis  (fi2;  Ql..  I,,.  .1,'r  l.;knk  r.  .Salem  (tank. 


17  .Mass.  ;i;{;  Itiiiik  ol  Coininen-t!  v.  Cnion 
Itank,  :i  N.  V.'.'iO;  Wtiis.ser  r.  Ociiion,  10  N. 
^  .  (;s;  tjcidiliird  r.  .Meri'lianls'  ll.'in'n.l  N.  Y. 
147;  N.'ilii  nal  I'tirk  Itank  n.  Ninth  N'alioiial 
l!,iiik,.lti  \.  V.  77;  Hank  of  tho  I'mlcd  stales 
r,  ISaiik  '<!  tieoi'Kiu,  Id  Wlieiil. .i,iU;  (.'uniuier 
cial,  etc.,  Itunk  r  tirsi  Naiional  Hunk,  ;10 
M<l.  II;  Kirht  Natninal  Hank  r.  Iticker,  71 
lll.4;t.i,  HcrnhiMuicr  r.  Marshall,  J  Moui.  'H; 
liUvy  V.  Hank  of  Ihe  I'nilei' siatcH,  I  Uall  'J.i4. 
t'outra,  Nalioiial  Hunk  of  Aiutincu  c.  Hungry, 
liXlMuKx.  441. 

4  oiiiii  St.  (I'JU. 


« 


{*' 


I'i 


m\ 


!  I 


I 

tl 


f 


!    I 


n 

ill 


!l 


I 


I 


IV: 


iilfii 


H 


'212 


\    Oll't'KKKNT    UKLAT1U^8    AM>    Ul^Cll* ATlON.S. 


IViiks  ;iik1  Hanking. 


upon  anotlicr  b;ink  was  presented,  !in;l  payment  or  pnreliase  reipiested  !n  an 
unknown  bearer,  to  take  miNins  lo  assure  liimsolf  thai  all  was  rij;lit,  and  for  ihc 
(Iravveo  l)ank,  upon  reeoiving  a  cheek  Min)iii;li  another  bank,  to  assume,  nlyin;; 
upon  tlic  custou),  that  sucli  inquires  Iiarl  i)eon  nuuii!.  Tiie  jury  haviiii:  fdimd  for 
the  drawee  i)ank,  tlie  Supreme  Court  a(liru)e(l  tiie  judgment.  "  If  tins  ciivt,,:!!/' 
said  Uannkv,  J.,  "  was  estal)lisiiu(l  to  the  satisfaetion  of  the  jury,  fiie  i.iir  jirc. 
sumption  arisinj;  would  be  that  tiic  defendants  bad  been  nei^liueni  In  f.iiliim  to 
comply  with  an  esfablished  custom  of  the  business,  necessary  iu)t  only  tct  tin  ii 
own  security,  but  also  to  that  of  Mie  bank  upon  which  ii.e  check  was  diMwn,  .iii(| 
that  the  plaintiffs,  not  being  informed  to  the  contrary,  paid  the  cheek  uiiuii  iIk 
supposition  that  the  custom  had  been  obsijrved.  ♦  *  ♦  The  eusloin  whiclj 
the  plaintiffs  sought  to  establish  seems  to  have  been  one  of  the  most  k  iiMiii:il>lc 
character.  It  is  a  great  error  to  suppose  that  the  drawee  of  a  bill  or  c  luck  is 
bound  to  rely  alone  upon  his  knowledge  of  the  handwriting  of  his  cuslonuror 
c<)iTes|)()nd(Mit.  The  testimony  in  tlie  case,  as  well  as  ev(!ry  day's  oxjieiiiiicc, 
shows  this  alone  to  be  an  insullicient  security,  when  dealing  with  stniimci-  ainl 
ill  large  amounts,  against  the  ingenuity  with  v,liich  forgeries  ai''  lowcKiiiiiiiii'd. 
The  next  most  effective  precaution  is  that  of  re<iuiring  the  Ider  to  liinii^ii 
.some  rclialile  information  of  himself  and  of  his  right  to  the  paper.  Hut  wlun 
another  bank  intervenes  and  takes  the  check,  this  cannot  be  resorted  to  Uy  tin 
drawee.  As  between  the  t)auks,  therefore,  the  observance  of  the  eii>t>iiii 
b(!Com(!s  u  tiiatter  of  mutual  protection,  and  saves  to  the  drawee  the  iHinlit  ui 
this  preeauMcm."  Hut  in  a  (JonnecticMit  case,  where  a  bank  had  diseoiiiitod  a 
note  whhii  had  been  altered  l)y  erasing  a  portion  of  tlu;  priiitetl  ])iirt,  it  wa.- 
claimed  in  its  behalf  that  it  was  customary  f(»r  banks  to  discount  piiiier  urittiii 
on  prinU^d  blanks,  where  the  printed  matter  or  some  part  of  it  had  In m  cia-.ed, 
and  that  such  an  erasure  of  priiiled  matter  did  not  of  ilsc^lf  cast  suspicion  on  tlu 
paper  or  put  the  bank  itself  on  inciuiry.  Hut  this  contention  did  not  liiul  fa\iir 
with  the  court.' 

In  an  action  by  a  bank  to  recover  the  amount  paid  upon  a  raised  cheek  which 
bad  been  cerfilled  by  it,  evidence  that  by  the  custom  and  common  iiiidc  i^t.iihiiiii: 
of  banks  and  merchants  the  word  "  certitled,"  at  the  time  of  the  cerlilicaiion, 
when  used  in  the  ccrtilleatioii  of  checks,  imported  an  obligation  on  tlie  |i.iii  nf 
the  cenifying  bank  to  pay  the  amount  stated  in  the  check,  notwithstaiiilliig  the 
l»ody  of  If,  was  forged,  was  held  inadmissihh'.'^ 

§  75.  Note  voluntarily  cut  in  Two  — Usage  to  pay  only  Half.  —  Wli'ic  ttif 
holder  of  a  b.ink-bill  has  voluntarily  cut  it  in  two  for  the  purpose  of  tr.iiis 
mitting  it  i)y  mail,  whereby  one  part  is  lost,  he  may  recover  the  full  aiiioiiiil 
from  til"  bank  upon  presenting  the  one  half  and  proving  the  loss  of  the  otlur.' 
A  custom   on  tin-   part  of  the  bank  not   to  pay  any  of  its  bilN  voluntarily  cut  in 


'  Maliaiwo  It;i'ik  c.  nonplus-,  HI  ('iii\ii.  170. 
3  Secni-ily  ISiitik  r.  National  l'.,iiik,ii;  N.  V. 

'  Allen  r.  Miito  Maiik,  1  Dev  *  It.  Kc|.  S; 
Union  Ilaiik  t'.  W.-ivren,  (  sneed,  lit;;  Itank 
of  Vir){ii)i:i  V.  Ward,  (I  Miiiif.  |lir>,  Arniat  r. 
I'nioa  ntnik    :  (liMiK-di  (;.  VI.  180;  Kiillul  t'. 


Hank  of  t'cnnsylvaiiia,  •!  Wash.  C.  Ct.  i:.'. 
Martin  r.  Hank  of  the  Ihiiled  Stale-.  ■  \\  I'l' 
0.  CI.  -iXi;  stale  itank  r.  .XcisI'M,  4  III  I'-"'. 
Ilui-dalo  ('.  Kank  of  Oraiifje,  li  Wen  I.  ;T-<, 
rallon  r.  State  Hank,  '.'  S  <i\  X  M.  I'l', 
CoinuuMcial    Hank  i\   Itenudu'.t,  IS  »■   U""' 

ao7. 


^^ 


HANKS    AM)    RANKINO. 


213 


I'avincnt  of  Hills. 


two,  except  on  tlio  production  of  botli  parts,  cannot  affect  tliis  rule.'     So  of  a 
iiv:iL,'i;  to  pay  l)nt  half  tlie  amount  of  the  note  on  the  presentation  of  each  half. 
Iij  Allen  V.  iStnfr  nnnk:,'^  tl»e  jilaintiff^  allijfed  that  they  were  partners,  and  that 
one  of  them,  havin;?  received  a  umnbLr  of  the  defiMidants'  bank-bills  in  the  col- 
Icclion  of  debts  duo  tlie  linn,  for  the  purpose  of  secnrin;;  their  safe  transniis- 
sioii  to  the  other,  cut  each  of  ihein  into  two  parts,  and  enclosed  tlie  tlrst  halves 
on  0111' day  and  the  other  halves  on  another  day  in  letters  by  the  public  mail; 
that  tlie  first  parcel  came  duly  to  hand,  but  that  the  second  was  lost;  that,  as 
soon  us  the  loss  was  ascertained,  they  i)resented  to  the  defendants  the  halves 
rercivci'    offiM'ed  indemnity  against  any  loss  by  reason  of  the  missin;?  halves,  and 
dciiKiiuled  payment  of  the  whole  amcunt  of  the  bills;  that  the  defendants  paid 
tli(  Ml  one-half  of  the  sum,  but  refused  to  |)ay  more.     The  bill  prayed  that  the 
(li  f( iiiiants  mi^irhl  be  nMiuired  to  pay  the  balance.     The  defendants  replied,  inter 
aliii,  that  it  was  their  eiisturn  to  pay  the  hold,  r  of  a  hall'-aote,  on  presentation 
at  llioir  counter,  one-half  of  Ww.  amount  of  tlie  iiol<  ,  Vv'hieh  cu.slom  was  known 
to  their  dealers,  ami  particularly  to  the  plaintiffs:  that  this  custom  was  adopted 
from  re<i;ard  to  public  convenience,  and  not  upon  a  su;)itosiiion  of  tiicir  liability, 
for  they  contended  that  no  liability  could  be  enforced  except  on  the  presenta- 
tion of  tin;  entire  note.     The  court  decreed  for  the  plaintiffs.     "  W  hi  it;  the  '  wo 
purls  exist,"  .said  G.\.sr<)N',  J.,  "and  are  retained  by  the  lawful  holder,  the  riuhts 
and  liiiijilities  of  thi;  parlies  remain  precisely  the  same  as  befon;  the  division. 
If  on(!  of  the  parts   be  aflerwards  lost  or  destroyed,  the  rij;ht  of  the  former 
holder  of  tlif!  note  and  the  obli-^ation  of  the  maker  an;  Hh'  same  as  thoiiiiii  the 
ivhole  note  had  been  destroyed.     Had  iJie  notes  in  this  (.'ase  been  put  into  the 
mill!  in  their  original  state,  and  then  the  loss  occurred,  it  iiiiuht    with  e(|U;il 
pl.iii-ibilily  have  l)een  urjjced  that  the  plaintiffs,  for  their  own  coiiv cuience,  took 
"piiii  tliemsolves  tin;   risk   of   loss,    and  can    therefoi-i"   demainl    payment    only 
luriirdinij;  to  the  letter  of  the  eni^a.^eimMil.     If  the  law  warranted  micIi  a  usau;e  as 
th;u  alley:ed  by  the  defi'iulants,  of  payiiii^  upon  a  half-note,  by  whomsoever  pre- 
Miiti'd,  half  the  amoiiul  of  the  note,  the  risk  of  injury  to  tli(;  one  or  other  of  the 
imrtiis  would  be  the  same  in  the  ii-ansniissioii  i)y  mail  of  a  divided  as  ol  a  whole 
note.     In  the  former  case  tlu're  would  bi;  indeed  a  double  chance  of  iiasualties, 
hut  only  a  danger  of  half  a  loss  upon  each  casualty.     Such  a  usane,  however.  Is 
wJiolly  unsupported  by  law.     Tlie  holder  of  a  half-note,  as  such,  has  no  ri^lii   to 
any  part  of  the  money.     Such  a  nsai;e  has  a  pernicious  tendency  to  facilitate  the 
H'ccipt  of  money  by  th<!  disli<inest  holders  of  half-notes,  and  I  liendiy  creates  or 
imiltiplies  temptations  to  dishonesty.     The  transmission  of  divided  notes  by 
M'Vi  nil  mails  diminishes  the  daiiijer  of  injury  as  to  one  of  the  parties  and  does 
I'ol  iiierease  it  as  to  the  other,  is  for  the  beni!llt  of  eoininerce,  affords  addi- 
tional security  a}j;ainst  dishonesty  by  lesstminu;  the  induceim'iit  to  commit   it, 
and  (iimlit  ill  no  manner  to  affect  the  riulits  of  the  lawful  owners  of  the'  notes." 

§71).  Bank — Bona  flde  Holder. —  Kvidence  of  usa?i<'  Is  competent  to  show 
'"lat  a  hank  whiidi  in  u.'ood  faith  receivts  a  check  from  a  depositor  and  passes  it 
to  !us  creirii,  and  on  the  same  i!  ly  pays  and  (diariies  aiiiiiiist  such  deposit  checks 
drawn  by  him,  is  a  honajide  lioldei'  for  value  of  the  ilepo-.i»ed  check.' 


'  Itank  (iftlic  United  .StiUcn  i .  Sill.Sl omi 
lOfi;  in  Am.  Doc.  44. 
"  1  bov.  A  H.  Kq.  3. 


'  Market   Hank    r.  Kaitslimne,  3   Knye^, 
i;n;     Nalional     (inlil    *    Tinst    Co.   r.    Mr 
Donald.. ')!  I'lil.  t>4. 


!  '  ' 


Iti 


( 


■i 


m 


i 

.  1 

I 

214 


IN    DIFKKKKNT    ItKLATIONS    AND    OCCUPATIONS. 


CoiiiiiKin  (?tirri«r». 


•)  : ': 


I 


§  77.  Past-due  Negotiable  Paper  -  Equities. —Tim  purchii.ser  of  ncL.">lial)lc 
piiprr  past  diK;  taki's  it  subject  to  tin' fi|iiitii"<  of  othiT  parties;  he  can  a.'inir'- 
iio  bL'ttor  title  than  iiis  transferor.'  In  Vcnnilijc  v.  Adams  Express  (Jampnnij,' 
.'•  iisa<;c  of  brokers  in  opposition  to  this  rule  of  hiw  was  set  up,  i)nl  wiiinuit 
Mifcess.  A  number  of  United  States  treasury-notes  whicii  liad  l)een  stolen  Irmn 
the  express  company  were  i)ur(liascd  by  a  firm  of  bankers  after  the  date  at 
wliicli,  on  their  face,  they  were  payable  or  convertible  into  bonds.  It  apjicanil 
that  the  company,  after  the  loss,  had  been  prompt  in  K'^ini;  warninf?  of  the  tin  ft 
by  advcrtisinu;  in  the  n:\v-|)apt^rs  and  th^livering  notices  to  the  i)rincii)al  brokir.s, 
including  the  defendants.  The  latter  introdn(;ed  evidence  to  show  that  notes  of 
th(^  kind  in  (pic<tion  continued  to  be  bought  and  sold  l)y  bankers  and  brokers 
after  they  had  In-cinne  due;  that  it  was  not  customary  for  dealers  in  :ioveruiiieiit 
securities  to  keep  records  or  lists  of  the  numl>crs  or  de.scrijilions  of  boiidn 
ulle<icd  to  have  been  lost,  stolen,  or  altered,  or  to  refer  to  such  lists  before  pur 
chasini;  such  securities;  that  it  would  be  impracticable  to  carry  on  the  business 
of  dealin<j;  in  {>;<tvernmenl  se(Miritics  if  it  were  necessary  to  resort  to  such  lists 
and  make  such  cxamin.'ition  prc^vious  to  purchase;  and  that  the  |>nreliase  of  the 
notes  in  (piestion  was  made  in  the  ordinary  and  usual  mode  in  which  such  trans- 
actions arc  conducted.  It  was  held  by  the  Supreme  Court  of  the  United  Slates 
that,  as  to  such  overdue  pai)er,  a  purcha.ser  takes  subject  to  the  riiihts  of  un 
antecedent  holder,  to  the  same  extent  is  in  the  case  of  other  pajier  boui^lil  alter 
maturity,  and  that  the  notes  could  be  recovered  of  the  defendants.  "Hunkers, 
biokers,  and  others,"  said  Mr.  .Iiisiice  Mii.i.ki!,  "canintt,  as  was  attemplid  in 
this  ca.se,  establi.sh  by  proof  a  nsaij;e  oi  custom  in  dealinj!;  in  such  [laper  whieli, 
in  their  own  interest,  contravenes  the  establislied  commercial  law.  If  they  have 
been  in  the  liabit  of  disrcfiardinj;  that  law,  this  does  not  relieve  them  from  the 
conseiinenccs  nor  establish  a  different  law." 

A  note  not  negotiable  under  the  u;eneral  commercial  law  may  be  shown  to  he 
.so  by  tlie  custom  of  a  particular  locality.' 


'  ,   i'i 


;| 


;     . 

■<    ' 

1  ■' 


11.  Common  Cakkikks. 

!j  78.  Liabilities  ot  Carriers  created  by  Custom.  —  A  common  carrier  is  one 
who  iindorlakes,  for  hire,  'o  lraus|)(ir'  Mn^  (imids  of  sudi  as  choose  to  eMi|iloy 
him,  from  place  to  place.'  lint  the  tnu^portation  of  t^ooils,  as  was  said  by  .IniL'e 
Stouv  ill  an  early  ca.se,'' does  not  imply  Mi.it  llie  owner  holds  himself  out  a^  a 
carrier  of  articles  of  a  different  n.il.nrc.  Yet  common  carriers  may  undertake  lo 
carry  other  kinds  of  property,  and  if  it  is  their  custom  to  do  so,  they  vvil!  lie 


1  Texas  r.  Ilanleiiliui-K,  in  W;dl.  (18;  Marsh 
r.  Miir:.lial!,  rv:,  \\>  S|.  :i'.M'.;  Kelle>,'«  v. 
.•scliiiiiake,  M  Mo.  HIT;  l>a\is  r.  Miller,  14 
(iialt.  1;  .\reiils  r.  'I'lie  ( ^ommonwealtli,  is 
(;iall.  750;  Kislier  r.  I.eland,  t  Cusli.  VA . 
('i.irke  r.  Deilerie.k,  ;ll  Md.  I4H;  Menick  )■ 
lUillef,  J  I.aii-.  10:; ;  I.ivennore  »•.  Illonil,  4ii 
Mil.  »S;  HiirkiT  /  \';ileii(lne,  10  (iray,  ;MI; 
Flint  V.  Klinl,  0  AII«mi.:;I  ;  Thciinas  »•,  Kinsli'y, 
H  (ia.  JJl;  Kielits  r.  Slun-lcni.  I  Coldw.  I(», 
Dlainoiid  v,  Hiiiti--,  li.i 'I'oxa-,  till ;  Hiirneiuli 


'.■.  MosH,  10  ISarn.  A  Cross.  .ViS;  Klllle  '  l>e 
I.ainater, :;  Noli.  ;iA'i ;  Ciood.sdii  r.  J(iliM>nii,  »') 
Texas,  tV2'>. 

•■■  '21  Wall.  1.(11. 

!  Uliidskntl  r.  barren,  li  Iowa.  IT-';  .<  ■'  '♦ 
l>\va.  in-J.     r.nl  see  Croneli  r.  ('re. hi   •iiii 
i.i.t,  I.,  i;.  sg.  u.  ;!74. 

'  I'liUer,  (;.  J  :ii  DwiKlit  r.  I'.n'H'ler.  I 
l'iv:k.  .'ill;   1,,'HV^ini  on  iliir  ,  i  I. 

'■  i;ili/.e.i>'  Itiuik  r.  Nanliic.ket  Stcamt)i>»t 
(    •., -J  siory,  lt». 


COMMON    CAUKIRK8. 


215 


U.siitio  as  to  Doliverv  to. 


Ij.niml  in  the  one  case  us  iimcli  us  in  tlie  (itlier.  Tlu-  usa^t's  of  the  carrirr  and 
vi  till.'  public  in  tliis  iiarticiilar  an;,  tlion,  llu'  roalroliinii  ijiiestion,  ind  it  liciny; 
pi'uvcd  tlmt  it  was  iiis  nininion  praoticc  to  roccive  and  carry  cortain  piopi-rty  for 
hill',  liis  callin;;as  a  common  carrier  of  sncli  property  luconies  «'stal)li.slii'd  and 
Ills  lialjiiity  a-,  sucli  at.tacl;cs.  Tlicreforc  lie  ma\  l>c  llai)le  as  u  cuninion  carrier 
of  inoiiey, as  has  Ijisen  lieid  i;i  a  nunil)er  of  cases; '  and  so,  where  l)y  liie  usai^e  of 
mull!  the  (;arrier  of  y;oods  is  to  act  as  ttie  ai^i-nt  for  ilie  sale  of  tliein  at  tlie  port 
of  destination,  and  to  return  the  net  proceeds  to  tlie  >liipper,  ho  is  a  common 
curler  of  the  money  on  tlie  return  trip.-  The  word  •' -^ooils,"  when  used  in 
ili'iiiilii;;  his  business,  is  interpreted  as  meaning  such  things  as  from  ii  ^a^e  and 
cu>l*)m,  his  mode  of  conveyance,  his  public  proft^ssions,  tlie  character  of  his 
particular  trade,  or  the  manner  c>f  coiuliictiuj^  it,  iie  is  to  be  fairly  iiiidi;rslood  as 
liolilinj;  himself  out  to  the  public  as  ready  to  carry  for  hire.'  And,  therefore,  a 
>tLiiuil)oat  may  by  custom  become  liable  as  a  common  carrier  ot  cash  letters.* 
.\ml  in  an  action  auiainst  a  ferryi,ian  for  injury  to  a  box  of  jewelry  in  plaintiff's 
piiiirioii,  wliile  bein^  landiMl  from  th(!  defendant's  f(4Ty-boat,  the  (juestion  was 
wlnilur  it  wj's  a  part  of  the  contra<t  that  the  defendant  should  land  carriages. 
li  was  shown  tliat  such  was  the  usage  at  that  ferry,  aud  the  plaintiff  had  a 

V(  Tilicl.' 


■  .' 

:  Ji 


i 
n^j 


"It 

'C9 


;;  71).  Delivery  of  Goods  to  Carrier  as  controlled  by  TTsagre. — The  duties 
ami  responsibility  of  a  common  carrier  in  respyct  to  the  noods  of  otliers  do  not 
cniiiiiiL'iice  until  llieir  ileliv»;ry  to  him.  It  is  well  settled  that  to  make  the  carrier 
llalile  they  must  be  ilelivercd  to  him,  or  to  .some  a;;ent  of  his  authorized  to 
nceive  them  on  his  belialf."  When  a  delivery  made  to  an  employee  of  the  carrier 
who  does  not  possess  the  necessary  authority  from  his  principal  is  suflicieut,  has 
Im  III  u  subject  not  free  from  dilllculty,  as  the  adjudicated  cases  will  show.'  Ho, 
llu'  jihue  at  whic'h  the  delivery  should  be  made  has  uiven  rise  to  considerable 
linzation.  In  both  tiiese  cases  the  delivery  may  In-  ^liown  to  have  been  made  iir 
liirsuaiice  of  a  u.sage  known  to  the  carrier  aud  recojinized  by  him,  and  will  then 


'  Kemp  V.  C'oiiglitry,  II  .loliiis.  lO'.i;  Tin- 
iinniili,  etc.,  .M.iil  (lo.  c.  IWcil,  1.')  Iml.  :!45; 
>liililoti  V.  Kobiiison,  7  N.  II.  LIT;  Ktiiery 
I.  Horsey,  4  Grecnl.  407;  Ilaninjcloii  r. 
.Mi'shaiie.'i  Walts,  44:{;  Merwiii  r.  Ilullor,  17 
Ciinn.  liW;  Ilonea  ti.  MeCioij,  I."  Ala.  ;!4St; 
Niw  .ItTscy  Stoani  Nnv.  ('<).  r.  .Merfhaiil.s' 
li^nik,  r,  How.  ;144;  UwiBht  r.  lirew.-ler, 
I  I'lik.  .lO;  11  Am.  Dec.  l:t;i;  Hutch,  oii 
t  :ii.,  §  10;  Allen  I.'.  Hewall,  '1  Weiiil.  :J'27; 
!»i'uall  r,  Allt'M,  (i  WiMid.  :V.V>;  \an  Saiilvnord 
I'.  St,.luini,<;  Mill,  \:>s;  Kirllanil  r.  Moiilgoiu- 
t'ly,  1  Swan,  4.V.'. 

'  Ki'in|i  r.  ('oii;;htfy,  11  .lolin.s.  107;  Lee  v. 
>altci-,  I.alor.  Hi:!;  Kiiiery  r.  Mersey,!  (ireeiil. 
<iiT;  li;  Am.  l>i'.'.-J(H;  llarrinnloii  c.  MiSliaiie, 
-'  Walt-,  41.1;  Taylnr  r.  Wells,  :t  Walt-,  li.''.. 

Mutch.  (Ill  Car.,  §  77.     And  see  Krederlck 
t   Mar.|iiotlL'.  etc.,  K.  Co..  ;t7  Mir.li.  i'.IJ. 

'  llo-ca  V.  Mccnn-y,  Vi  Ala.:!4:i;  tiarey  r. 
Mi;.!{licr,a.!  Ala.  t;;iO;  Knox  r.  Ilive.s  14  Aln. 
•ill). 


■'  Walker  r.  .Jacks. m,  lu  Mce.  &  W    101. 

«  <:hllty  1)11  (',ir.  j; ;  Itriiul  c.  Dale,  s  C.ir.  & 
P.  21)7,  -cluavc.  Il.lloway,  1  l,d.  Uayiii.  i(i; 
lttiekiii:iii  (•  l,e\i,  ;{  Camp.  411;  l,c;:;li  v. 
Suiiili.  1  Car.  .V.  I'.  f,:;s;  ciroHvenor  v.  U.ailroud 

»'.>.,::;•  N.  ^    ;i. 

"  lliiil.;    Iiiijjci  -    r.  Uailroad   Co.,  2   l.aim. 
■.ill'.!;  (miiiiil  r    MiMishaw,  Xt   Vt.  >'.o.', ,  Trow 
lindire    r.   Cliiijnii,    ■.:.'.    Coiiti.    .''I'l,''!,    h'.ml    c 
Mitchell, -Jl  Ind.  ".4;  \a'\%\\  v.  Sinilh,  1  Car.  * 
1*.  (i;tH;   r.nller   >.   llusinK,  '2  Car.  *   V.  (il;t; 
.Mien    r.  Sewall.  ■.'    Wend.   ..J7 ,    .slicldcii    r 
Uohinson,  7  X.  II.    l.'iT  .   sattei  Ice  r.  (iiMi,  I 
Wend.  272;  Dwiu'lit   v.  I!rcu-tcr,  I    I'icU.  .-.', 
Canideii,    etc.,  Traiisp.    Co     r     Uclkiini,   .; 
\Veiid.  ;!iM,  .•^Imi  r.  dreut  Norlhcrn  K.  Co.,  11 
C.  I!.  r,l7,Tall  \.ilc  K.  (.'o.  v.  (Jiles,  2  Kl.  &.  III. 
S2:t;   Ilv'le  /•.  'ric.nl  .N.iv.  Co.,  .'»  Term   Uep. 
4S'.»;  (.illiart  v  Dale,  .i  .Vd.  *  Iv  .51:1;  (;olc|ic|, 
per  e.  (iood, .")  Car.  .V  I*.  ISO;  I'.iirrell  r  Norili, 
2  <'itr.  *  Kir.  OSI ;  \\  ilsoii  c.  York,  elc,.,  K.  Co., 

17  I.  .1  •.".'■;. 


216 


IN    DIFFKIJKNT    RELATIONS    AN!)    OCCUrATloNS. 


Common  Ciiniiis. 


If 


^      s'S'l 


V 


bind  liim.'  "It  must  bo  iulmittcd,"  says  Mr.  IIirriMNsoN,'  "that  the  il.).  !iin.' 
of  constructive  dolivcrv,  witliout  notice  to  tlu'  carrier,  is  one  wliicli  shoulii  nv 
applied  with  great  caution.  It  is  undoubtedly  competent  for  liim  to  liind  IiImim  |i 
by  sucli  a  delivery,  eitlier  by  his  express  aiireement  that  a  dei)nsit  of  l'ou.U  ai  a 
particular  place  shall  be  a  valid  delivery  to  him,  or  by  so  advcrlisiiiLr  it  to  the 
public,  or  by  a  well-known  and  established  custom  to  receive  liic  ^oods  in  tli;r 
way,  which  would  perhaps  be  as  binding?  upon  him,  as  to  persons  who  had  ai  i<i( 
upon  the  notice  or  the  usage,  as  an  express  aiireement;  and  cases  may  arix'  in 
which  the  usage  and  course  of  dealing  between  the  parties  should  undouhtnl  v 
have  that  effect.  Hut,  certainly,  to  do  so  they  shouhl  be  shown  to  have  existed. 
and  to  have  been  uiiilorinly  acted  upon  by  the  parties,  by  the  most  satisfaciurv 
proof,  and  for  a  sullicleiu  length  of  time  to  have  become  an  established  iis,n^, , 
tantamount  to  an  agreement  to  that  effect,  or  to  a  declaration  to  the  pnblji'  liiai 
a  delivery  in  accordance  with  the  usage  will  be  deemed  an  aiTeptance  h\  liii.i 
for  the  purpose  of  the  transi)ortation;  and  perhaps  it  should  be  shown  that  a  n  li- 
anco  upon  the  previous  course  of  dealing,  or  the  usage,  or  the  notice,  had  (i,n- 
trolled  tlu!  action  of  the  shipper  in  the  particular  instance.  But  few  rases  aru  to 
be  found  in  which  the  rule  has  been  applied,  and  it  is  to  be  pn^iiincd  thai  siu-ti 
instances  will  not  be  of  frecpient  occurrence."  In  Cobban  v.  Doi'-iir,'  a  ililiMiv 
to  the  mate  of  a  ship  by  a  wharllnger  was  held  to  be  a  good  delivery,  the  ii-i.ii:. 
of  the  wharf  being  proved  to  siisiaiu  it.  Lord  i<]LLK\BOUoi'<;ii  said  :  "  What  the 
duty  of  a  wharfinger  is,  is  to  be  measured  by  the  usage  and  praclieo  of  otiurs  in 
sin)ilar  situations,  or  his  known  and  professed  liability.  Kvery  man  contract- 
with  the  public  according  to  the  known  and  ascertained  usage  of  tiie  trade  nr 
business  in  which  lie  is  engaged.  The  defendant  has  proved  that  by  i'stahli>lieil 
usage  the  goods  are  delivered  by  the  wharllnger  to  the  mate  and  c.vw  of  tlic 
vessel  which  is  to  carry  them,  from  whicli  time  it  has  been  considered  tiiat  titeir 
responsibility  is  then  at  an  end."  In  Lei/fh  v.  Smith,*  which  wa<  a  similar  a(ti"ii 
against  a  wharfinger  for  goods  placed  in  his  charge,  and  which  he  contended  Iimi! 
been  delivered  by  him  to  the  carrier,  the  evidence  simply  showed  thai  the  uomlii 
had  been  placed  on  the  wharf  near  the  ship.  Bust,  C.  J.,  on  the  autlioiii>  of 
Cubban  v.  Doione,  adnulted  evidence  of  the  usage,  but  the  witness  who  was 
called  on  behalf  of  the  defendant  tcstilled  that  the  custom  was  to  deliver  to  thi 
mate.  The  chief  justice  then  .-^aid  that  the  usage  could  not  be  extended,  and 
directed  a  verdict  for  thi;  plaintiff.  In  an  Indiana  case  it  w.as  ruled  that  while  a 
usage  would  sustain  a  delivery  to  the  deck-hands  of  a  steamboat,  yet  the  iiuri; 
fact  that  the  manner  of  the  reception  of  the  property  by  the  deck-hands  was  siicii 
that  the  odlcers  whose  duty  it  was  to  receive  goods  for  transportation  inii-i.  if 
they  had  exercised  reasonable  diliLrenee,  have  known  that  the  box  was  in  tii* 
boat,  and  have  received  it,  was  not  sutlicient  to  charge  the  carrier,  in  the  ah>;eii  ,■ 


'  Hut(■,h.OIlC.^r.,§§S^,87;  Fonl  r.  Milclioll, 
21  1ml.  M;  LelKh  v.  Smith,  1  Cur.  &  I*.  (i:l8; 
niancltuni  v.  IsaacH,  :5 1'.arb.  ;W8;  Mcrriam  v. 
IIailfor(?  etc.,  R.  Co.,  20  Conn.  :t5l ;  Converse 
V.  Novwith,  etc.,  Transit,  (-o.,  ;!;«  Conn.  ICtJ; 
(iroen  v.  Milwaukee,  etc.,  II.  Co.,  ,TS  Towa, 
100;  «.  c,  401owa,  410;  Wiiplitr.  Culilwell.  :J 
Mich.  61;  I'lickiiid  f.  (ietn-.an,  (i  Cow.  T.V"; 
O'Uannon  ti.  Southern  Kxiiress  Co.,  .11   Alu. 


4S1;  IJnchanan  1'.  Levi,  ;t  Cam)).  J 14;  llliii"is 
Cuntral  li.  Co.  c.  Siayser,  liS  111.  ?M  :  I'.un  li 
V.  Nortl'.iCar.  A  Kir.  (iTit;  Freem  in  /■.  New- 
ton,:! E.  I).  Smilli'.MO;  Hickox  r.  Nau-'ai.  k 
R.  Co.,  ;n  Conn.  ■.'SI. 

»  Hutch,  on  ('ai.,5  93. 

■■>  5  Ksp.  41. 

*  1  Car.  &  I'.  (;;i8. 


l! 


■^ 


(OMMON    CARKIKU8. 


-'17 


Di'livi-ry  of  Bapp;ii;;e. 


iif  a  ciistoin  anthori/.iiiu:  :i  dolivcry  to  the  deck-Irinds.'  Hut  a  dtlivt  ry  t()  a  person 
who  has  become  accii«.t(»nit(l,  with  the  coiisciil  of  ilic  carrier,  to  receive,  is 
alwavs  sufllcicnt  to  biiiil  him. ■  Delivery  to  th<'  (lri\  er  of  a  -:ta<;e-eoacli,  not  at  tiie 
company's  ofllce,  is  not  a  jrood  delivery,  but  it  may  be  made  so  if  siieli  was  tlic 
iisau'c  of  the  company,  reco'inizcd  by  it.'  A  delivery  on  the  privati-  wliarf  of  a 
currier,  althouiih  without  any  notice  to  him  or  lii'^  servants,  will  bind  liim,  if 
sucli  lias  been  liis  customary  mode  of  receiving  floods.* 

§  80.  Delivery  of  Baf;era(?e  by  Passenger.  —  The  course  of  business  of  a  car- 
rier may  justify  a  passcnirer  in  h^avin-i  his  ija-riraiic  at  a  railroad  depot  without 
notice  to  the  company.  Thus,  in  an  Iowa  case,'  the  plaintiff,  di'^irint;  to  take  an 
cariv  snorninu  train  on  defendant's  road,  sent  lier  trunk  the  eveniii;^  before  by  a 
(ir:iviiian  to  the  depot.  It  was  left  by  tlie  drayman  in  the  wailin;;-room,  and  as 
tluie  were  no  enipioyees  of  the  defendant  about  the  premises,  no  notice  tinreof 
\va<  L'iven  to  any  oni;.  It  was  shown  that  the  |il;iintiff  had  <piarterly,  for  thri-i; 
yrar-,  lieen  in  the  habit  of  makin'.;  the  journey  she  was  then  about  to  make,  and 
had  always  sent  her  trunk  the  evenin'jc  before:  and  also,  that  other  travellers 
were  in  the  habit  of  doin^;  the  same  thin;;  when  they  went  by  thi;  morning  train. 
The  (Iravuian  tcstilled  that  he  had  often  left  baiura.ue  at  the  depot  under  similar 
circumstances.  The  trunk  was  destroyed  by  fire  the  same  niulit.  The  Supremo 
Oourt  held  that  the  jury  wore  justified  in  rctnrnimr  a  verdiet  for  the  pl.iiiitiff. 
"  It  is  not  claimed,"  said  Bkck,  C,J.,  "that  defendant  wouhl  be  liable  witliont 
a  ililjvery,  either  actual  or  constructive,  of  the  property  to  its  a5r(Mit  or  servant. 
That  a  delivery  may  be  made  at  the  f)roper  i)lace  of  receiviim  such  ba!i'.ia'j:e 
under  the  express  assent  or  authority  of  the  carric^r,  without  notice  to  its 
oin|il"yees,  will  not,  we  pre»;\ime,  he  disputed.  *  »  ♦  'Pli 'I'e  wa-  evidence 
t(!Miliii'4  to  show  a  course  of  business  on  the  part  of  defeielaut — !i  custom  to 
receive  haiTiiaiie  left  at  the  station-house,  a<  in  this  ca-^e,  without  notice  to 
defendant's  servants.  Ui)on  evidence  of  this  character  it  wa«  proper  that  the  facts 
should  have  been  left  to  the  determination  of  the  jury,  wheiii  •!•  there  had  been 
adcliveryof  the  property  within  the  ruhis  above  announced,  whether  a  cour-e 
of  husiness  — a  custom  —  had  been  (istablishcd  to  the  effect  that  a  dolivcry  of 
ba^'u'aixe  at  the  station-house  without  notice  was  rejiardcd  by  def  ndant  a^  a 
delivery  to  its  servants,  and  whether  plaintiff's  trunk  was  rcceivrd  under  this 
custom. " 

§81.  Usage  must  be  strictly  followed.  ^The  usaije  m.i«-:  be  strictly  f(d- 
lowed;  in  other  words,  the  jiariy  who  sets  it  up  must  l)rim:-  himself  within  its 
terms,  or  it  will  not  jiroteit  him.  The  old  case  of  Lciij/i  v.  .Vi/.i7/*,«  just  cited,  is 
an  exaiiipi,.  of  this  rule.  So,  when!  a  trunk  was  placed  on  i  boat  by  a  p<'r-on 
who  did  not  accompany  it  as  a  passcn.cccr,  it  was  h<dd  that  the  ta.  t  that,  accordiuf; 


'  Ford  r.  Mitchell, 21  Ind.  M. 

'  Runcll  c.  Nortli,  2  (;;ir.  .V:  Ivir.  BT3. 

'  liiiiiicliiird  V.  Isaacs, :!  IJiirlj.  ;1SS;  Hutch, 
on  Car.,  §87. 

<  Men  iam  v.  JIartfonI,  etc.,  It.  Co.,  '20 
iNinn.  :;.-,|;  Conversi-  ,-.  Xorwicli,  etc., 
Tiaiisp.  (Jo.,  ;u  Conn.  IGC.     And  see  i'uekanl 


v.  Getiiian,  0  Cow.  "."'7;  IJucliinaii  r.  T.cvi.  3 
Camp.  414;  O'llaiinon  ;-.  '^  piiilioiu  K.xpros 
Co.,  ,'il  .Ma.  4S1. 

■'  Green  c.  Milwaukei-.  ••u\,  It.  Co.,  38  Iowa, 
100;  s.  c.  \\  Iowa,  410. 

1  1  Car.  &  I',  (iltft,  aiiU    5  I'J. 


I 


1^ 


'  M' 


y.H: 


I 


■  l\i\i 

.  J 

i 

'     M 

f'.,.l 


21M 


IN    DIFFERENT    KELATIONS    AM)    OCCLTATIONS. 


Ciininon  f!iir;i(!rs. 


to  the  custom  of  the  ho.it,  tlu;  delivery  of  a  pa^xiiircr's  l>!iixi."il<'  liy  n'lttiii'i  it 
on  tho  bout  wus  .sutlli'iciil,  witliout  fiirtticr  iiotifi',  woiiM  not  .i\,iil  ilic  Dl.inniff, 
he  not  being  a  paHS('ii;;er.     "It  is  woll  settled,"  said  the  nmrt,   ••il.n    i  ;i 
uniform  custom  is  estahlijiiied  jukI  recognized  by  the  carrier,  ami  is  {.imwn  i,(i 
the  public,  that  property  iiileiuled  for  carria;ie  may  Ite  deposited  in  ,i  p.iiii  iil.n- 
|>lac(!  without  express  notice  to  him,  that  a  deposit  ol  jtrnperty  for  ili:it  |iui|i  ix,- 
in  accordanc(!  with  the  custom,  is  constructive  iiniice,  tiiid   would  ninli  r  mv 
other  form  of   delivery    unnecessary.     The  rule  is  founded   in    reason,    i>  ih,. 
usage,  if  habitual,  is  a  declarati(m  by  the  carrier  to  the  public  that  a  deljv.rv  nf 
property  in  accordance  with  the  usage  will  Ih;  deemed  an  acceptance  of  it  In 
hiui  for  the  purpose  of  transportation.     To  allow  a  carrier,  when  prop<rl\  is 
thus  delivered,  to  set   up  by  way  of  defence  the  geiu-ial  rule  wliici;  reijuircs 
express  not  ic  •,  would  operate  as  a  fraud  upon  the  public  and  lead  toniinifi-st 
injustice.     There  was  proof  in  this  case  from  which  a  jury  miu'ht  infer  t'lal  ii 
was  the  usual  practice  for  passengers  on  the  steamboat  Teie<_'rapli  to  (li|i(isit 
their  baggage  in  a  particular  place,  and  that  further  notice  of  delivery  or  accept- 
ance was  waived.     A  careful  exunnuation  of  the  rec<)rd,  however,  shows  tluii 
the  facts  thus  proved  were  inapplicable  to  the  issue  made  up  between  llie  par 
tics.     The  declaration  seeks  to  charge  the  defendants  for  the  loss  of  the  Iruiik 
and  its  cont(  iits,  received  by  them  for  the  piirpost-  of  being  transported  to  St. 
Clair.     There    is    no   averment   tliat   the   trunk    thus   delivered   contained  tiic 
ordinary  wearinj; -ipi'irel  of  a  person  who  had  taken  i)assage  on  the  l)o;U,  or 
that  it  was  received  as  such      The  fact  that  the  plaintiff  was  a  passenger  :iml 
took  passage  iu  the  boat  was  essential  to  a  rec  )\ery,  and  on  that  the  proof,  with 
all  the  evidence  received  and  acted  upon,  was  indirect.    There  is  no  pret'  set- 
that  any  custom   prevailed   in   respect  to  the  receipt  of  property  as  freiniu, 
Notice  of  delivery  and  acceptance  for  such  purpose  is  controlled  by  the  :,'(iri;iI 
law.     The  proof  is  conclusive  that  the  mode  of  delivery,  as  sanctioned  by  the 
usage,  was  applicable  exclusively  to  the  ordinary  baggage  of  a  passenger,  and 
had  no  application  to  i)roperty  received  and  agreed  to  be  transported  as  freiu'lil. 
Tlie  custom  is  believed  to  be  universal  to  allow  passengers,  in  any  of  the  usual 
modes  of  conveyance,  to  carry,  free  of  charge,  such  wearing-apparel  as  may  lie 
necessary  or  convenient,  and  the  price  paid  l>y  the  passenger  constitutes  tin' 
consideration  for  the  safe-keei)ing  and  transportation  of  his  ordinary  bajnanc 
If  a  trunk,  therefore,  is  deposited  with  a  carrier  without  bi-ing  accompanied  !)> 
a  passenger,  it  is  received  as  freight,  and  is  liable  to  the  payment  of  onliii.uy 
charges;  and  notice  of  its  delivery  to  the  carrier,  and  of  .-icceptauee,  must  !"• 
}{iven  according  to  the  rules  of  law  before  any  liability  can  attach  in  ea-ie  of 
loss."'     So,  where  the  custom  makes  the  placing  of  goods  on  the  dock  near 
the  boat  and  notice  to  the  carrier  a  sullicient  delivery  to  liim,  if  more  articles 
are  j)laeed  on  the  uharf  Ihau  the  carrier  is  uotilled  of,  he  will  not  l)e  auhweralile 
for  the  excess.' 

§  H2.  Complete  Delivery  not  altered  by  Usagre.  — But,  though  usage  may 
render  that  an  effeetual  delivery  which  without  it  the  law  would  not  ri-iranl  as 
siitlicieiit,  the  .omerse  of  this  ride  is  not  true;  for  where  th/re  has  been  an 
actual  delivery,  a  u^ageon  the  part  of  the  carrier  that  he  shall  not  be  responsihii' 


'  WrigliL  u.  liallvv   ii,  I  Mich  51. 


«  ratikai-ii  o.  Ui'liuaii,  li  Ci>w  T'l". 


COMMON    <;AUKIKU8. 


2Vj 


U.-uue  !is  to  Dolivory. 


until  soinclliinii  .idditioiiiil  lias  ht^f n  (lone,  is  not  cffcftuiil  to  nl tor  his  liability, 
;! >  rc^i)oiisil>ility  Ix-ciuiics  tlxcd  l)y  accoptlnj;  tlu)  |m  •  rty  to  l)0  transported, 
.  ;,!  till'  accrptancc  is  coriipU'tt'  wlu'iicvcr  tlu;  properly  cohk^s  into  liis  po^-  session 
v, ill  ills  assent.     A  shipper  notitltd  a  railroad  company  that  ho  iiad  u  quantity 

iittoii  to  send  by  their  road,  and  the  eoinpany  ran  u  car  on  a  side-tracli  up  to 

:i  -  w.ireliouse,  •.viiieh  was  loaded  with  the  cotton  and  notice;  sinl  to  tlie  coni- 
iMiiy's  aijeiit;  but  brfore  auythiiii;  more  was  done,  tlie  cotton  accidiMitaliy  took 
liiv, 111(1  was  injured,  l-'.videnee  was  offered  of  a  cii^tom  of  tlie  company,  upon 
rr  civinij  such  notice,  to  have  the  l)ales  (counted  and  uJve  a  I)ill  of  ladinj;, 
lAceptiim  losses  liy  lire,  and  tlien  send  an  enfjine  to  iiuiovi-  tin-  cars.  But  the 
ti.il  (u)urt  refused  to  admit  the  evidence,  which  ruliim  was  atllniu'd  on  appeal. 
T  lis  decision  lias  been  criticised  by  Jiuiiic  Iticui' iKi.u  '  as  not  m.  lini;  tlic 
■•liiy;lie.st  .sense  of  justice."  In  this  conclusion  we  cannot  concur.  Tla' jndg- 
111' lit  of  tlie  court  is  clearly  founded  on  principles  of  law  and  established  rules. 
"Tlie  side-track  and  the  cars,"  said  the  court,  "  bidonij  to  the  con;  i.iny,  .lud  are 
iiiidir  their  exclusive  (tontroi.  And  there  is  no  <piestion  tlia,  the  company 
I'liiced  thl.s  cur  at  a  point  opposite  the  wliurf-boal  on  wiiii-h  the  cott':n  was 
>i  ircd,  for  tlie  expri'ss  pui'poseof  liavins?  it  transfi-rred  from  the  boat  to  t'lu  car, 
tliit  they  iiiii.)it  transport  it  to  tlie  point  desired  l>y  tlie  shiiiper.  The  company 
liul  uiniuesliuiinbly  the  exclusive  use  and  control  of  tlieir  road,  side-tracks,  and 
tf.  i;ilit-cars;  no  use  could  be  made  of  them  without  the  consent  of  the  company. 
s  '  Imiii  as  a  car  remained  on  their  road  or  side-track  it  was  under  their  control, 
:iiiil  necessarily  in  their  possession.  They  had  the  rijilit  to  !;erinit  their  cars 
Hi  stand  at  the  point  at  wliich  this  one  was  placed.  Tlie  company,  at  any 
;ii  Munt,  at  least  after  the  cur  was  loaded,  had  the  umiuestioiied  riuht  to  remove 
i;  ti)  ;iiiy  other  part  of  tiieir  road;  l)ut  the  commission  mercliunt  had  no  such 
li.'lit,  even  if  lie  had  possessed  the  means.  Me  simply  had  the  ri'jlit  •(>  load  tlm 
(■  tt'iii  on  the  car.  Tlie  wharf-lxiat,  on  the  contrary,  was  in  the  possi^ssion  of 
th(!  commission  men,  and  the  cotton  .so  continued  until  it  was  placed  in  the 
ir.  It  tlieti  passed  Into  tlie  possession  of  the  company  as  effectually  as  if  it 
!i;i(l  been  delivered  in  tlieir  warehouse.  They  sulxstituted  tlieir  car  for  their 
u  iiuliouse,  no  doubt  for  the  mutual  convenience  of  all  parties;  and  this,  too, 
V  ith  tlic  assent  of  tlie  company,  to  iiromote  their  interest  in  the  prosecution  of 
til.  business  for  wliich  it  was  created.  If  this  was  a  box-car,  the  company  had 
till'  riu'lit,  as  soon  as  the  cotton  was  plactMl  in  it,  to  liave  it  clo-ed  .ind  locked; 
"I,  if  an  open  car,  they  liad  an  equal  rii;ht  to  have  secured  tht;  cotton,  and  any 
111  TSDii  interfering;  with  it  would  have  been  a  trespasser,  and  the  comi>any  could 
Ui\^'  iicovered  damages  for  any  injury  thus  perpetrated.  No  difference  is  per- 
(-•  veil  in  receiving;  freiglit  on  the  platform  of  their  depot  and  with  their  cars  at 
I-  lilac  on  their  road  or  side-track,  or  whether  it  is  placed  there  by  tlnir  own 
fiii|)l(iyees  or  by  other  persons,  so  it  is  done  with  tlie  assent  of  the  company. 
Ii  is  not  the  mere  siitning  a  bill  of  ladiny;  which  transfers  the  possession  of 
livi'^lil  to  the  company,  but  it  is  the  evidence  that  they  have  received  possession. 
T:i.  ir  possession  may  be  shown  liy  any  other  lej^itimate  evidence.  Tlie  liability 
ill'  common  carrier  is  (Ixcd  by  acceptiii;^   the  property  to  be  transported. 


(if 

It,  h  iwiner,  goods  are  placeil  on  his  cart,  boat,  or  car  without  his  knowledge  or 

III  (I  i:;ui(e,  he  is  not  liable.     If  the  owner  or  person  having  the  custody  of  the 


I  ; 


1^  M 


■M 


Illm.jjs.  i..tc,.,  K.  Co.  I',  smyser,  33  III   :m. 


!{("lf.  on  Car.,§  101. 


r 


220 


IN    DIFFKKKNT    KKLAI'IONS    AND    OCi'l.  I'ATIO.NS. 


Common  Carriers. 


J  ■ :  .  1 


131 


goo(K  to  be  shipped  never  parts  with  their  possession,  or  docs  not  place  ilnin 
under  the  control  of  the  carrier,  there  is  no  bailment,  and  consi-ciufiitl}  nn 
liability  incurred.    But  in  this  case  the  company,  by  their  acts,  ac((|)tL'(l  the 
trust.    The  cotton  was  not  placed  in  the  car  without  their  knowlcdf^e,  imt  ii 
was  with   their  express  assent.     Had   the   employees  of  the   plaintiff's  a^t  nt 
placed  the  cotton  on  tlie  platform  of  the  depot,  witli  the  assent  of  the  company, 
to  be  transported,  no  one  would  doubt  their  liability;  and  yet  in  principle  no 
difference  is  perceived.     According  to  the  current  of  modern  decisions,  it  is  com 
petent  for  a  common  carrier  by  rail  to  limit  his  common-Unv  liability  by  expn  -- 
contract.     It  was  held  in  the  case  of  Illinuif  Crutnil  Uailroad  Compaivj  v.  Mnr- 
rison,^  after  a  careful  review  of  the  adjudged  cases,  that  railroad  companies 
could  restrict  their  liability  by  express  aj^reement,  tiiey  still  being  held  rcs|joii- 
sible  for  jjjross  negligence  or  wilful  misfeasance.     Hut  in  that  case  the  rule  was 
restrict cd  to  a  special  contract;  nor  are  we  aware  that  any  well-consich  r(  il  case 
has  carried  it  farther,  and  we  have  no  disposition  to  do  so  unless  coniijcllcd  bv 
authority.    But  this  rule  of  law  can  have  no  application  to  this  cuse,  bccansc 
there  is  no  pretence  that  there  was  any  special  agreenu^jt  restricting  the  lialjilit;.' 
of  this  company.     Their  liability  cannot  be  limited  by  showing  that  it  was  '.lie 
usage  of  the  road  to  embrace  in  all  bills  oi  lading  for  the  sliijinunt  of  coV'.m] 
that  the  company  should  not  be  liable  for  losses  by  fire.     Tlnre  was  an  offn  to 
prove  that  such  had  been  the  usage  of  the  company,  and  that  it  was  kimun 
to  shippers.     If  this  had  appeared  it  would  not  iiave  availed,  as  noiiiing  I'nt 
a  special  agreement  could  have  that  effect."     A  Connecticut  ca^^e  sonuwli.it 
resembles  the  foregoing.     There  the  plaintiff,  who  intended  to  leave  upon   in 
afternoon  train,  took  his  trunk  to  the  depot  in  the  morning,  but  was  told  by  the 
agent  of  the  company  that  they  did  not  check  baggage  until  lifteen  minutes  before 
the  train  left.     He  th(;i'eupon  placed  the  trunk  with  the  agent,  and  a    the  tiim 
Indicated  called  for  and  obtained  a  check,  but  on  his  arrival  at  his  (l">iiinalion 
it  was  found  that  some  money  and  clothing  had  been  abstracted  from  it.    In  u 
suit  for  its  value,  the  defendants  claimed  tliii,  the  company  were  oidy  lialile  fiiiin 
the  time  when,  according  to  their  custom,  they  received  the  trunk  for  traii>- 
portation,  — viz.,  the  time  when  it  was  checked,  —  and  that  if  the  articles  wni 
stolen  after  it  was  left  at  the  depot  and  before  it  wa.s  checked,  there  eoulil  lie 
no  recovery.     But  the  court  refused  to  accede  to  this  view.     "The  ciisioin  of 
checking,"  tliey  said,  "can  have  no  effect  upon  the  character  of  the  dclivin. 
That  custom   did  not  necessarily  qualify  the   delivery  and  acceptance.    'I'' 
check  is  in  the  nature  of  a  receipt,  and  may  he  given  and  received  at  any  liui' 
when  the  convenience  and  custom  of  the  company  dictate.    It  is  not  tliecmi- 
tract,  but  evidence  of  the  ownership,  delivery,  and  iuentity  of   the  bail.;:;:;  . 
It  is  the  delivery  and  acceptance,  the  abandonment  of  all  care  of  the  Ivi^ui." 
by  the   passenger   and    the  assumption   of  it  by  the  agents  of    the  carriciv 
exprc'ssly  or  impliedly,  for  the  purpose  of  transportation,  which  llx  tlie  liahility 
of  till'  latter  as  such,  and  that  liability  begins  when  the  baggage  is  dclivercil  to 


the  agent  of  the  company  for  carriage."'^ 


<  19  III.  i;t6. 

-  Hiokox  1'.  NniiRatuck  It.  (Jo.,  HI  Conn. 
■11  ,  Krceinan  r.  Newlon,  ;i  K.  I).  Sinill),24n; 


(/'amden,  etc.,  Transp.  Co.  v.  I5i!lkii;i|i    -' 
Wend.  :V>i. 


COMMON    CARItlERS. 


221 


Us.i^t;  as  to  Stowage. 


§  83.  Liability  for  Property  while  in  Transit.  —  Altliont^h,  when  the  property 
i>  (Iclivcivil  iiito  Uio  carrier's  possession,  the  owner  anil  his  servants  may  accom- 
pany it  and  Ivcep  an  eye  on  it,'  yet  the  carrier  must  be  given  the  full  control  of 
tlic  |)ropi'rty;  and  if  it  appears  that  there  is  no  intention  to  trust  him  with  its 
cliiiiam',  he  will  not  be  held  liable.^  A  custom  that  the  shipper  shall  have  full 
coiitri)!  of  the  goods  would,  therefore,  excuse  tiw  carrier  for  their  loss  in  every 
iii-tance  in  which  it  was  followed.  The  defendant  was  a  lighterman  on  the 
Thames,  and  was  sned  on  his  undertaking  to  carry  for  hire.  The  evidence 
sliowert  that  it  was  "  the  usage  of  the  company,  on  t'le  unshipping  of  the  goods,  to 
clap  an  officer —  who  is  called  a  guardian  —  in  the  lighter,  who,  as  soon  as  the 
ladin;^  is  taken  in,  puts  the  company's  locks  on  the  iiatches,  and  goes  with  the 
:.'oo(is  to  see  them  safe  delivered  at  the  warehouse.  It  appcaifd  to  he  done  in 
liiis  ca-e,  and  part  of  the  goods  were  lost."  R.vymoxu,  C.  -J.,  was  of  opinion 
tliat  "this  differed  from  the  common  case,  this  not  being  any  trust  in  the 
defondant,  and  the  goods  were  not  to  be  considered  as  ever  having  been  in  his 
possession,  but  in  the  possession  of  the  company's  servant,  who  had  hired  the 
liL'liter  to  use  himself,"  and  nonsuited  the  plaintiff.'  But  in  Schifffe.lin  v. 
ILirvp'i,^  decided  i"  New  York,  testimony  was  offered  to  sliow  tliat  as  soon  as  a 
(.ustoiii-iiouse  oflicer  was  put  on  board  a  vessel  the  goods  were  at  the  risk  of  tlie 
>!iippur,  according  to  the  general  understanding  of  nierciiants.  But  Tiiompso.v, 
.).,  said:  "The  testimony  is  inadmissible.  The  established  principles  of  law 
cannol  i)e  controlled  bv  custom." 


:(' 


H 


'i ' 
■  ( 


li' 


j  -^t.  stowage  of  Goods  as  affected  by  Custom.  —  In  the  carriage  of  goods 
In  water,  where  there  is  no  bill  of  lading,  or  wlieiv  the  bill  of  lading  is  .-.ileut 
upon  the  sul)ject  of  storage,  it  is  the  duty  of  the  carrier  to  stow  them  under 
diek.^  But  usage  has  changed  this,  not  only  in  the  carriage  of  dangerous  oils 
and  liquids,"  and  in  the  transportation  of  animals,'  — because  the  former,  if  car- 
ried on  (le<-U,  in  case  of  aecid(!Ut  may  be  more  <'asily  cast  overboard,  and  the 
l:ittur  are  more  healliiy,  and  can  be  cared  for  better  than  if  in  the  hold,  — but  in 
oihor  eaNus.'*    In  GoulU  v.  Oliver,^  a  usage  to  load  tiuiln'r  on  the  decks  of  sailing- 


il 


'  Kv.iMsr.  Fitcliburg,  etc,.,U.(;().,ni  Mass. 
U'2:  Siifcsljy  V.  Lancashire,  etc.,  It.  Co.,  L. 
I!  '.I  Q.  I{. '.id:!;  ItobiiKsoii  r.  Dmiiiiiiro,  •.'  I'.o.s. 
-'i  I'ul.  4ir>;  (!()Io  r.  (iooflwiu.  IK  WenU.  i51; 
1.1'  Conleur  r.  London,  etc..  It.  Co.,  L.  U.  1 
k>.  I!.  .V,. 

-  Iliili'li.  on  r.ir.,§  8,5;  Aug.  on  Car.,  §  MO; 
T'lwor  V.  tliica,  etc.,  U.  Co.,  7  Hill,  17; 
<  ih.Mi  c.  Frost,  1  Diier,  :!.«;  llollisier  v. 
^"wl(.n,  111  Wend.  •>:U:  WillonKliby  i:  Itor- 
ii'lft',  74  Knit.  Com.  L;iw,  'i: .  Briml  c. 
"••'In,  8  Car  &  P.  '207:  White  i-.  WiMni-irii- 
i^>«t  Co.,  7  Ciish.  15");  .Mile.s  v.  Cattle,  11  liin.sj. 
■«;  Oianse  County  Hank  r.  Brown, !»  Wciui. 
^5. 

•'  Kast  India  (;o.  v.  Pullen,  2  Stni.  (i!)0. 
'  Anth.  7(i. 

'  nodRc  V.  I{arlol,5  (ireenl  -JSK;  Wolcott 
»••  lasiuaiico  Co.,  4  rick.  l-i<);  'I'iiiinton  Cop- 


I)cr(?o.  r.  Merchant-'  In^'.  Co.,  2i  Pick.  108; 
Sprout  r.  Donnell,  'J6  iMe.  Isi;  Lamb  r. 
ParUoian,  1  S|)ra)?oe,  :U'i.  This  rule,  it  seems 
from  recent  dcci-iions,  docs  not  apply  to 
.-tcamboats  on  lakes  and  rivers.  ILii-ris  c. 
Moody, :50N.  Y.2t;tl;  (iillcltt;.  Klli.x.tl  111.679. 

''  Da  ( 'osta  f.  Kdmiinds,  4  Camp.  141. 

'  l!i  iivvn  r.  Corawell,  I  Knot,  60;  .Mihvurd 
V.  liildicrt, :!  Ad.  A  K.  (N.  s.)  120. 

~  Merchants',  etc.,  Ins.  Co.  v.  Shillilo,  15 
Ohio  SI.  .V)H;  (iould  c.  Oliver,  4  Hinj?.  N.  C. 
l:U;  <  liol)l)  r.  licnaiid,  16  J,.  It.  (N.  s.)  4'.i'2; 
The  >iar<  f  ll.ipe,  17  Wall,  6.)1 ;  The  I'ara- 
ffon.  Ware,  ;!'JJ;  Harris  v.  Moody,  :;o  \.  Y. 
•itJtl;  Taunlon  Copper  (Jo.  v.  Merc.h.'iiit,-' 
Ins.  Co.,  -2:  Pick.  lOH;  Patersuu  c.  lilack, 
,■5  Upper  C   nada  Q.  M.48L 

"  4  iJiiig.  N.  C.  134. 


I* 


:il 


II 


'thtl 


i 


1  Ifh;:: 


222 


IN    Ull'FEKENT    RELATIONS    AND    OCCUPATIONS. 


Common  Carriers. 


ve,ss(!ls  was  rocoRnizcfl,  ancl  in  Harris  v.  Moodij,'  part  of  the  cargo  of  a  steaiii- 
hoat.  From  two  ri'cent  cas<^s  it  appears  tliat  vviien  oiistom  re(|iiin;s  the 
carrying:  of  certain  ijoods  on  decli  or  In  the  cabin,  to  carry  tiiem  in  t!ie  Imlii 
will  render  tlie  carrier  liitble  in  tiie  event  of  tiieir  ix'ini;  diunaged.' 

A  carrier  by  water  is  also  liable  for  damage  done  to  tlic  goods  of  a  sliipi),  r, 
8tovve<l  in  the  liold  of  his  vessel,  through  contact  with  other  goods.'  IJul  ti,;- 
rule,  also,  usage  may  alter;*  as  by  showing  that,  according  to  the  usage  of  tin 
trade,  salt  in  sacks  was  stored  with  other  goods,'  flour  upon  liogshculs  nf 
sugar,"  gunny-doth,  and  bags,  close  up  to  the  upper  deck,'  the  carri(!r  will  he 
discharged  from  lial)ility  for  a  loss  whi(;h  but  for  the  usage  he  must,  hiv 
assumed.  In  the  li-st  of  Miese  cases  I  lie  court,  in  deciding  th(;  iiuestion,  -:\u\: 
"Now,  it  having  been  sliown  that  this  cargo  was  stowed  in  Jiccorilance  wiin  an 
established  usage,  why  is  not  that  decisive  in  favor  of  the  libellants?  It  ii;i-. 
been  earnestly  and  ably  contended  that  it  is  not,  but  that  this  usage  is  of  -  i  i  ;i 
character  that  it  is  to  be  rejected  and  disregarded.  Wliat  is  its  (;li;ira<'i(  i •?  Ii 
is  a  usage  as  to  the  mode  of  stowing  a  cargo  of  mercliandise  for  a  sea-voxM^','  _ 
a  usage  of  trade  as  to  the  details  in  the  mode  of  carrying  it  on.  It  vioia;  - 
no  rule  of  law  or  jjrinciple  of  public  policy,  but  is  a  matter  of  business  bctwciii 
private  Individuals,  to  be  regulated  by  them.  Then;  is  no  controver.sy  tli.it  tin' 
parties  may  make  a  contract  for  any  mode  of  storage  wiiicli  they  may  sec  lit. 
Wliat  contract  have  they  made  in  this  respect?  In  tin-  iil)scn(('  of  exiins-.( d 
stipulations,  the  usage  of  the  trade  answers  this  quj'stion;  to  tiiat  usage  tlir 
contract  tacitly  refers,  not  to  contradict  or  vary  its  terms,  l)nt  for  expoimdiiiL' 
its  meaning  and  supplying  details  in  the  mode  of  its  execution.  I^et  us  look  iiiio 
this  charter-party.  It  contemplates  the  conveviince  by  sea  ot  a  full  can,'i)  of 
great  value  by  a  long  voyage,  and  yet  not  a  word  is  said  as  to  the  niiuniiT  in 
which  that  cargo  shall  be  protected  at  the  bottom,  at  tlie  sides,  or  on  tiic  ;ii|). 
Not  one  word  is  said  as  to  tlie  navigation  of  the  ship,  by  how  many  or  what  kind 
of  officers  and  seamen,  jr  sails  or  rigging,  or  other  essential  requisites  for  the 
voyage.  The  contract  being  silent  in  this  respect,  how  an  the  rights  and  duties 
of  the  parties  to  be  ascertained?    The  answer  is,  by  tin    usage  of  the  trade." 

§85.  Delivery  by  Oar' ier  as  controlled  by  Custom.—  Mr  UtiToiiiNsoN  says: 
"The  delivery  required  of  the  comm(m  carrier  has,  by  usage  and  legal  const rnc- 
tion,  come  to  have  very  different  significations,  according  to  tlie  particular  kind 
of  business  which  he  undiTtakes  and  the  various  modes  of  conveyaiiee  whicii 
he  employs  in  its  tran.saction ;  and  tfiat  which  constitutes  a  delivery  in  one  cr-^e, 
or  as  to  one  kind  of  carrier,  will  not  be  considered  as  sufficient  for  the  purinKe 
when  performed  by  anotlier,  the  particular  nature  of  whose  employment  us  car- 
rier or  whose  mode  of  carriage  may  be  different.  In  thix  ret/aril  the  iisaijrs  of  the 
various  kinds  of  carriers  have  conformed  to  the  necessities  of  commerce,  and  the  Imr, 


'  ,30  N.  Y.  iOT.  .And  koc  Burbor  e.  lii-.ico, 
3  Conn.  !». 

-  Hlakie  v.  8teinl)ri(l};e,  5  Jur.  (N.  s.) 
1128;  The  .Star  of  Hopo,  17  Wall.  ♦Wl. 

■I  Gillespie  r.  Tlii>ini),soii,  (!  Kl.  &  Ml.  477; 
llroussiinu  V,  The  lladson,  11  I.a.  An.  427; 
CrJinwell  v.  TIih  Kanny  Kosdick,  15  hsi.  An. 
430;  The  ('otonol  Lodyard,  1  Hprague,  5:50; 


IJpar.»o  V.  Ropes,  1  Spraguo,  Ml ;  The  Chi' 
shire,  2  Sprngiie,  28. 

<  Clurk  V  narnwell,  12  How.  272;  Biixtcr 
V.  Lelaiid,  I  Hlufehf.  .Wo ;  Lainh  v.  rarkmii", 
1  SpniRue,  343. 

<•  Clark  t>.  narnwell,  1'2  IIkw  27'2. 

•  naxtor  1'.  Leland,  1  Hlaiclif.  ,V.'0. 

'  Lamb  V.  I'arkinun,  I  Spraguo,  "AX 


I!' 


COMMON    t'AUKIKUS. 


r>:i;jt'  as  to  Delivery  by. 


ill  its  turn,  xcems  to  havr  Ix-m  made  to  conform  to  sucfi  Asvrjrf.v." '  And  aijain :  • 
"I'lic  tnanner  in  wliicli  Ww  \;irii)iis  classes  of  lominoii  carriers  are  required  to 
miikc  delivery  has  now  become  so  well  setlied  that  a  case  could  but  seldom 
(iiciir  in  which  it  couhl  not  he  at  once  detcrniined  without  a  resort  to  the;  proof 
lit  usiiire  or  custom.  Not  only  have  the  tisajjes  of  those;  who  ply  the  business  of 
(■amin;i  jioods  for  hire  for  the  public,  in  tiie  various  modes  and  according  to 
ihi'ir  various  professions,  l)eeoine  miivcrsally  understood,  but  as  to  those  into 
wliDse  hands  the  '^VfHt  bulk  of  the  earrviii;;  business  of  tlie  country  has  fallem 
most  of  the  (|uestions  of  doul)t  as  to  the  uianuer  in  which  they  are  retpiired  to 
make  the  delivery  of  the  iroods  to  tlie  consijj^nee,  or  party  entitled  to  them,  have 
Ixcii  settled  by  judicial  decision:  and  whenever  such  questions  now  arise,  judi- 
cial notice  will  iienendly  i)e  taken  of  their  several  modes  of  dcdivery,  as  matter^ 
of  hiw  rather  than  of  fact  as  to  usaire.  It  is  still,  however,  the  duty  of  most  of 
ilio^e  who  are  classed  as  common  carriers  to  make  personal  delivery  to  those 
fdi  whom  the  artiele  carried  is  int<Mided;  and  wluMiever  the  carr  <r  (jugaj^od  in  a 
particular  mode  of  carryinu;,  as  t(^  which  the  kind  and  manner  of  delivery  required 
have  not  been  so  establi^-lied.  claims  that  he  is  exonerated  by  the  long-existinsi 
ami  uniform  course  of  his  business  from  making  a  personal  delivery,  the  pre- 
Mimption  of  law  will  be  against  his  claim,  and  he  must  overcome  it  by  proof. 
l)i  livery  to  the  person  for  whom  the  goods  are  intended,  or  to  whom  they  are 
iiiii'<ij;nod,  being  the  rule,  he  must  bring  himself  within  the  exception  by  showing 
ali)ii'i-ei)iitiuue<l  and  well-understood  usage."  .And  intin  Illinoiscase,  Caton,  J., 
sivs:  "While  the  convenience  of  commen-r  may  re(^nire  different  rules  for  the 
ilrlivery  of  goods  when  transported  by  s;iil  or  st'Mui  vosels  on  the  great  lakes, 
on  the  rivers,  on  the  canal,  or  by  railroad,  l)y  plank  or  the  common  roads,  it 
would  be  very  inconvenient  for  each  commercial  point  on  the-i'  thoroughfares 
to  (stahli.sli  an  independent  usage  by  which  the  same  contnii  i  would  receive 
different  constructions,  depeiuling  upon  the  place  at  which  it  was  to  be  per- 
foiiiied.  Where  the  necessities  of  any  particular  line  of  commerce  may  ren- 
iliT  a  particular  usage  so  indisi)ensably  necessary  as  to  commend  itself  to,  and 
force  itself  ui)on  all  those  engaged  in  that  line  of  commerce,  thei'c  may  be  great 
propriety  in  allowing  such  usage,  when  it  has  become  universal  and  well  under- 
Mood,  and  acquiesced  in  by  all,  to  be  proved  in  order  to  explain  the  intention  of 
|iarties  upon  points  as  to  which  the  contract  itstdf  is  not  explicit,  although  with- 
out such  usage  the  law  might  give  it  a  different  construction.  This  is  allowed 
upon  the  same  princljjle  which  allows  other  extraneous  facts  to  be  proved,  in 
view  of  which  parties  have  entered  into  engagenuMits,  and  by  the  aid  of  which 
llii'lr  iiileutions  are  ascertained  where  otherwise  they  might  be  doubtful. 
lltiico,  in  construing  a  bill  of  lading  or  other  contract  lor  transporting  freight, 
we  must  look  to  the  mode  of  transportation  by  means  of  which  the  contract  is 
lo  l)e  i)orf(H'med  —  as,  if  by  water-craft,  navigating  either  the  lakes,  rivers,  or 
I  aiials,  it  is  not  to  be  presumed  that  the  delivery  Is  to  be  made  away  from  the 
watrre()iirs(!;  or,  if  by  railroad,  away  from  the  track  or  depot  of  the  road,  unl(;ss 
it  is  Dtiierwise  expressly  stipulated  in  the  contract.  If,  how;,'ver,  this  is  expressly 
"Stipulated,  that  would  show  an  Intention  that  the  carrier  slumld  use  otlier 
niwuis  of  iransporiitlion  than  those  usually  employed  in  the  course  of  such 
'nule.    Such  expressed  intention  would  destroy  the  presumption  tbnt  the  cou- 


lliitcli.oiiOar.,  §;i;t8. 


s  Iff.,  ^  Ml. 


««. 


■  1  ■■-• 

m 

f: 


ii 


U 


li 


224 


IN    DIl'FERKNT    RELATIONS    AND    OCCl  PATIOXS. 


Common  Carriers. 


tract  was  to  be  performed  by  the  means  of  transportation  in  ordiniirv  use  hv  the 
party  undertakiiif^  to  perform  it.  In  construing  contracts  of  affrei{!;lUincnt,  tlie 
courts  themselves  take  notice  of  the  course  of  trade,  and  tlie  means  of  tr.inspor- 
tation  in  use  in  carrying  on  that  commerce;  and,  in  aid  of  tlie  means  of  iiiforiiia- 
tiou  which  the  courts  are  supposed  to  possess  in  reference  to  connnercial  lians- 
actious,  usaj^es  which  the  necessities  of  a  particular  trutlc  have  establishid  have 
been  allowed  to  be  proved  to  the  courts,  to  aid  them  iu  giviny  a  con.-tniciion  tn 
contracts  made  in  reference  to  such  trade."  • 

§  86.  Delivery  by  Carrier  —  Continued.  —  As  with  the  delivery  to  the  carrier 
the  liability  of  the  carrier  commonces,  so  with  the  delivery  to  the  coiisi^'mc  tlie 
liability  of  the  carrier  ends.  At  first  it  was  looked  upon  as  the  duty  of  coiniiion 
carriers  to  deliver  the  goods  to  the  consignee  personally.  "A  contrary  <li  ri- 
siou,"  said  Ashhukst,  J.,  in  an  old  case,-  "would  be  highly  incouvonlcni.  uid 
would  open  the  door  to  fraud;  for  if  the  liability  of  the  carrier  were  to  1 1  :i-;c 
when  he  brousht  the  goods  to  any  inn  where  he  might  choose  to  put  his  cuidi, 
and  a  parcel  containing  plate  or  jewels  brought  by  him  were  lost  by  him  before 
it  was  delivered  to  the  owner,  the  latuir  would  only  have  a  remedy  against  a 
common  porter."  But  when  this  rule  was  estai)lished,  the  carriage  of  -.'oocs 
was  done  throughout  England  by  coach-owners  and  wagoners,  who  were  al)le  to 
go  about  from  house  to  house,  if  necessary,  to  make  delivery  of  the  property 
intrusted  to  their  care.  It  was,  therefore,  early  relaxed  in  the  case  of  foreiu'n 
ships,  whose  iindertaking,  by  custom,  was  merely  to  carry  from  port  to  port. 
And  for  the  same  reason,  and  on  grounds  of  convenience,  the  strict  rule  as  to 
personal  delivery  is  not  applied  to  eitlier  domestic  carriers  by  water  or  (■airicrs 
by  railroad.  Tiie  former  "are  confined  to  the  limits  and  courses  of  the  vaters 
upon  which  they  navigate  their  vessels,  and  cannot  leave  them  with  tiieir 
vehicles  of  transportation  to  seek  the  consignee!  or  other  jierson  entitled  lo  the 
goods  upon  the  land."  The  latter,  lil<e  carriers  by  water,  "cannot  deliver  at 
tlie  warehouse  or  other  place  of  business  of  the  consignee  without  the  employ- 
ment of  other  means  of  transportation  than  such  as  they  employ  upon  ilieir 
tracks."     But  express  companies  are  within  the  old  rule.' 


I  Caton,J.,in  Dixon  ».  Dunham, U  111.  324. 

•J  Hyile  r.  Trent  Nav.  Co.,. 5  Term  Uc)).  :S8!). 

I  Hutch,  on  Car.,  §§  :!41-;iT0;  Uedf.  on  llys., 
§  157;  Cope  i\  Cordova,  1  Kawle,  20;{,  pout, 
§  94.  Concerniiif;  delivery  at  elevators,  as  is 
the  rule  a.s  to  an  i  npoiianl  partof  the  inland 
commerce  of  \h)>  country,  we  find  tlie  fol- 
lowing note  of  a  de<',i.sion  of  in'jrest  in  the 
New  York  Daili/  liegmler  lor  Augu.st,  lf<SO: 
"Among  the  new  methods  which  give  rise 
to  new  >|Ucslions  of  law  is  that  of  the  use  of 
elevutoi'.s  in  the  grain  trade.  A  recent  deci- 
sion of  the  Unllalo  Superior  Court,  of  gen- 
eral importane.e.  hold.s  that  a  consignee  of 
even  a  part  of  a  cargo  of  grain  arriving  ha.s 
a  right  to  select  the  elevator  into  which  his 
part  shall  be  diseliarged;  and  that  a  dis- 
cliaige  by  the  earrier  to  anulher,  contrary 


to  the  consigiieeVs  reijuest,  is  not  a  pno.l 
delivery.  It  was  elaiined  by  the  (Mrrieiilru. 
by  custom,  if  a  cargo  of  grain  earrie.l  l)y  a 
vessel  from  a  iiort  in  another  State  tn  tin; 
port  of  Buffalo  e,on'^i>ts  of  two  or  uioiv  par 
cols  consigned  to  diflForent  persons,  under 
bills  of  hading  containing  no  otiiei-  provi- 
sions aa  to  delivery  than  that  the  ^nam  -hall 
be  delivered  to  the  consignee  or  his  a-islgiis, 
the  person  who  is  the  consignee  of  the  majnr 
part  of  the  eariro  may  appoint  ;iii  I  tliiect  ;it 
what  elevator  his  part  shall  ho  deliMirnl, 
and  that  the  discharge  of  the  whole  caigu 
Into  the  elevator  so  designated  Is  a  g'»"l 
delivery  as  to  each  of  the  several  iiarccls, 
though  the  consignee  of  the  minor  parcel 
may  havi-  given  exi>ress  and  timely  'liiec 
tions  that  hia  parcel  be  delivered  at  aaotlier 


COMMON    CAKRIKUS. 


22b 


a 


Notice  as  Affected  by  Usage. 


But  even  carriers  by  land  who  were  able,  ami  upon  whom  devolved  the  duty 
of  malting  a  personal  delivery,  —  such  as  coach-owners  and  cartmen,'  —  might 
show  that  the  common  and  well-known  usage  of  tlieir  business  did  not  require 
it,  iind  in  such  cases  a  personal  tJ 'livery  would  not  be  necessary.  In  Garsid''. 
V.  Trent  Navigation  Company,'-  decided  in  1793,  evidence  of  usage  was  received 
to  determine  whether  the  defendants,  at  tlie  time  the  goods  were  burned,  lield 
them  as  common  carriers  or  warehousiimen.  lu  Ili/ile  v.  Trent  Naviijation  Com- 
paivj,*  decided  about  the  same  time,  the  judges  agreed  tliat  while  carriers  by  a 
cjuiiil  were  bound  to  make  a  personal  delivery  to  the  consignee,  their  obliga- 
tion might  be  changed  by  tlie  custom  of  trade;  and  the  same  principle  has  been 
frequently  recognized  in  the  American  decisions.* 


I  .  ;■ 


§  87.  Notice  required  by  Law,  but  waived  by  Usaere.  —  The  established  rules 
of  law,  liowever,  require  of  the  curriiT  tliaL  lie  shall  give  notice  of  the  arrival  of 
the  goods  to  the  proper  person,  in  order  tliat  he  may  have  an  opportunity 
of  removing  them  at  the  earliest  moment.*  The  course  of  business  be- 
tween the  carrier  and  his  customers  may  entirely  do  away  with  this  necessity. 
"The  effect  of  usage  in  doing  away  with  the  reiiuiremcnt  of  notice  in  cases  of 
caniers  by  water,"  says  a  writer  from  wliom  we  have  already  quoted  at  some 
1.  ii'^'th,*  "is  one  of  importance,  especially  in  river  navigation.  Sucli  carriers, 
e>iHeially  upon  our  Western  rivers,  rarely,  If  ever,  give  notice  to  tlie  onsignees 
of  iriiglit  which  is  put  off  for  them  at  the  numerous  places  Of  landing  upon 
ihese  streams,  unless  the  delivery  be  at  some  port.  It  seems  to  have  grown 
iulo  a  universal  undei'stauding  in  such  cases  that  the  mere  deposit  of  freight 


<lh 


elevator.  The  court  held  that  the  carrier 
fa:l<'(l  to  C8tiibli.<li  the  cxistencu  of  the  iil- 
k'Sod  custom,  and  that  in  the  absence  of 
eucli  ii  proven  usage  tlie  rule  o(  the  common 
l;uv  —  lliiil  tlie  carrier  shall  deliver  the  goods 
til  the  assignee  at  his  pl.'icc  of  business  — 
tiicvails  in  respect  to  grain  and  other  car- 
goes carried  in  bulk  by  vessels  engaged  in 
this  inland  trade:  and  that  a  different  rule, 
wlucli  had  its  origin  in  the  uoages  of  the 
iH'v.ux  trade,  and  is  applicable  to  geni'ral 
-hips  engaged  in  that  tralllc,  has  no  force  or 
apiilicalion  in  respect  to  that  class  of  our 
luland  commerce  to  which  the  ciuostiou  in 
ihi-caeerelates."  The  case  referred  to  does 
not,  as  yet,  appear  to  have  been  officially  re- 
ported. 

■  Aug.  on  Car.,  §  2'.»5;  Add.  ou  Ci.n.  810;  2 
Kent's  Comm.  CM;  Hyde  i'.  Trent  Nav.  Co., 
STcrm  Kcp.389;  Golden  v.  Manning,;}  VVils. 
421);  Smith  t>.  Nashua,  etc.,  it.  Co.,  27  N.  H.86; 
Storr  f.  Crowley,  1  McCl.  &  V.  Uti;  Steph- 
enson v.  Hart, 4  Bing.  476;  Garnett  f .  Willan, 
5  liarn.  &  Aid.  5:!;  Hodenbani  v.  IJennett,  4 
I'ric,;,  34;  Duff  v.  IJudd,  3  Brod.  &  It.  177; 
Birkettv.  Willan,  4  Barn.  A;  Aid.  396;  Gibson 
«.  Culver,  17  Wend.  305. 

'  4  Term  Uep.  681. 


"  6  Term  Kep.  339. 

<  Gibson  v.  CJulvcr,  17  Wend.  305;  Eagle  v. 
White,  6  Whart.  505;  Chickering  v.  Fowler, 
4  I'ick.  371 ;  McCarty  v.  New  York,  etc.,  B. 
Co.,  30  I'a.  .St.  217;  Witzler  v.  Collins,  70  Me. 
2'JO;  The  Felix,  2  Ad.  &  K.  273;  Petrochiuo  v. 
Bott,  L.  B.  9  C.  P.  355. 

•'Warden  v.  Mourillyan,  2  Ksp.  693; 
Quiggin  V.  Dulf,  1  .Mee.  &  W.  174;  Packard 
I'.  Getman,  6  Cow.  757;  Scholcs  v.  Acker- 
land,  15  111.  474;  Ciiuvford  v.  VAiuk,  15  111. 
5U1:  Fiske  v.  Newion,  i  Uenio,  45;  Price 
V.  Towell,  3  N.  Y.  322;  Pickett  «.  Downer,  4 
Vt.  21.  See,  as  to  railroads,  .Moses  v.  Bos- 
ton, etc..  It.  Co.,  32  N.  II.  523;  Thomas  t>. 
Boston,  etc.,  K.  Co.,  10  Mote.  472;  Norway 
Plains  Co.  V.  Boston,  etc.,  K.  Co.,  1  Gray, 
2t5;i;  McMastcrs  v.  Pennsylvania  U.  Co.,  69 
Pa.  St.  374;  Porter  v.  Chicago,  etc.,  K.  Co., 
20  III.  407;  llickard  v.  Michigan,  etc.,  It.  Co., 
20  111.  404;  Chicago,  etc.,  It.  Co.  v.  Scott,  42 
111.132;  Merchants'  Despatch  Co.  r.  Ilallock, 
(4  111.  2tJ4;  McCarty  v.  New  York,  etc.,  B. 
Co.,  30  Pa.  St.  217;  Shenk  t'.  l*ioi)ellor  Co., 
60  Pa.  St.  109;  Leavenworth,  etc.,  I!.  Co.  v. 
Maris  16  Kan.  3;t,'!;  Alabama,  etc.,  U.  Co.  v. 
Kidd,  35  Ala.  209. 

0  Uutch.  on  Car.,  f  366,  note. 


f 


1ft 


22(5 


IN    DIFB^KRICNT    RKLATIOXS    AND    OCCUPATIONS. 


Common  Carriers. 


.  £,     Jl 


31 : 


upon  the  bank  of  the  river  at  the  usual  place  of  landing  is  all  that  the  carrii  r  is 
expocted  lo  do.  Hiiviii^  thrown  into  a  universal  custom,  and  bi;iii;i  so  iiiili'- 
stood  bo(,vvo(;n  the  parties,  there  can  be  no  doubt  but  that  the  carrii;r,  in  m) 
depositing  ordinary  ireiglit,  has  done  iiis  duty,  without  giving  notice  to  the  con- 
signco."  Till'  ('[feet  of  sucli  a  usage  is  Icsaruedly  discussed  iu  the  opinion  of  tii.' 
Supreme  Court  of  Vermont,  in  tiie  leading  case  of  Fannnrs  and  McrJi'i, ties' 
Bank  V.  (Viainplain  Transpurtation  Company,^  given  in  full  at  the  coniiu'iico 
moul,  oi  tliis  ciiapter.  In  many  otlier  cases,  evidence  of  a  similar  cliaraci.  r  ii;i> 
been  held  to  be  a(lmis«;ible,  viz.:  that  it  was  customary  with  tlie  merchaiiis  of 
B.  to  receive  their  goods  on  tlie  wluirf,  and  not  have  tliem  put  into  the  sion  - 
house;  that  they  tooi<  charge  of  tliem  themselves  immediately  upon  their  JKiiiu 
landed,  and  usually  took  them  away  tlie  same  day,  but  if  there  was  a  proljahiiity 
of  their  being  damaged  by  remaining  exposed  to  the  weather,  or  if  ihey  vver 
considered  unsafe  on  the  wliarf,  it  was  customary,  if  tlie  owner  did  not  coiiU' 
and  take  charge  of  them,  to  put  them  into  the  storeliouse ;  '^  that  it  was  tlic 
uniform  course  of  business  of  the  defendant  line  of  stages  to  leave;  goods  or 
freight  transported  by  it,  directed  to  T.,  at  the  stage-liouse  there,  and  no;  {>> 
deliver  the  same  at  tlm  residt'uce  or  place  of  business  of  tlie  consignee;  that  ibr 
usage  prevailed  on  the  wliole  course  of  the  line  to  leave  goods  or  freiglil  i! 
the  usual  stopping-places  of  tiie  stage  in  the  towns  to  whicli  tlie  goods  wir 
directed,  to  be  delivered  to  tlie  consignees  wlieu  called  for;^  that  by  tlic  ciisto:!! 
at  N.,  steamboats  deliver  freight  by  putting  it  on  the  wharf  and  exliihiiiiiu^  in 
some  public  place  a  manifest  of  the  cargo;  tliat  freight  thus  plaeed  upon  the 
wharf  is  hauled  away  by  the  consignees  or  boss-draymen  without  any  .sinciiii 
notice,  the  consignees  and  the  draymen  themselves  taking  notice  of  the  arri\,il 
of  boats  and  of  freight  for  them,  if  any;  ♦  tliat  at  a  way-station  where  tiic  hiivi- 
ness  of  a  railroad  was  not  of  sufficient  importance  to  warrant  th'!  ereeiioii  of 
warehouses  or  to  have  freiglit-agents,  there  was  a  notorious  custom,  acfiiiiescid 
in  by  all  persons  in  the  neighborhood  receiving  freight,  to  deliver  goods  at  tlie 
station  without  storing  them,  and  without  notice.''  In  a  New  York  ease,  wlu  r.' 
it  appeared  to  have  been  the  custom  of  the  plaintiff's  agent  to  receive  from  liie 
defendant's  wharf  the  daily  shipment  of  goods  from  his  factory,  his  < ;uni;iii 
going  daily  to  the  wharf  and  conveying  tlie  goods  to  the  store  of  ilie  coii- 
signee,  the  court  held  that  from  the  long-continued  practice  the  consiLune  ninsi 
liave  known  tliiit,  in  the  ordinary  course  of  business,  goods  arriving  from  thi> 
factory  by  defendant's  line  would  be  awaiting  him  each  day  at  the  wharf;  savin;'. 
that  where  a  regular  business  is  thus  carried  on,  a  specific  notice  from  the 
carrier  of  the  arrival  of  each  parcel  is  not  necessary,  and  that  his  duty  is  pij 
formed  when  he  has  landed  the  goods  at  the  accustomed  place  and  tli''  coii- 
signee  has  had  a  reasonable  time  to  remove  them.'  In  Dixon  v.  Dunham,'  by 
the  terms  of  a  bill  of  lading  of  a  vessel,  the  defendant  agreed  to  transport  from 
Buffalo  to  Ctiicago  certain  goods  and  deliver  them  to  the  plaintiff,  who  was  the 


1      I' 


M 


I  16  VI.  ,VJ;  18  VI.  131 ;  '2:!  VI.  I*i;  ante,  p.  133. 
«  Blinu.  Mayo,  10  Vt.  .'id. 
>  Gibson  v.  (Jiilvor,  17  Wend.  ;ia5. 
*  Huston  i>.  I'otcrs,  1  MtUc.  (Ky.)  .'t.'iS. 
6  Mc,Mii»U;v.4  V.   I'ciinsylvaniJi  K.   Co.,  C9 
Pn.  St.  374. 


•  Uiissull  Man.  Co.  v.  New  IImvcm  sumhi 
boat  Co.,  .jO  N.  V.  i:i;  i;iy  r.  New  II  lu'ii 
Steam l)ojit  Co.,  B"?  Harb.  '.'07.  .Ami  -i'i.  Wood 
V.  MihvMukee,  etc.,  K.  Co.,  27  \Vi>.  .')4l. 

'  Mill.  ;wi. 


(  (JM.MON    <  AKKIKHS. 


227 


U.sa.i;('  as  to  Drliviry. 


con«i:rinf'  at.  CliicaEfo.  Botli  the  plaiuiiff  and  dofciKlint  owned  wliarvos  at 
Chicas;*).  'The.  ^oods  boin;»  broujjtit  to  the  drfi'iidam's  wharf,  lu;  notified  the 
plaintiff  that  tliey  were  tliero,  but  the  latter  it;f»sed  to  receive  tliein  unless 
delivered  to  him  at  his  own  wiiarf.  The  Supreme  Court  of  Illinois  ruled  thni 
under  the  terms  of  the  contract  the  captain  of  the  vessel  was  bound  to  (hdivir 
tiie  ^roods  to  the  plaintiff  at  the  place  of  business  of  the  latter,  if  he  haii  on  • 
convi'uient,  in  the  port  of  Chica;j;();  but  that  it  was  rompetent  for  the  dcfcudani 
to  set  up  a  usa.Eje  in  the  port  of  Chicago  that  sjoods  should  b(!  delivci\'d  ,u  tin- 
wharf  selected  by  the  master  of  the  vessel,  and  that  consiiinees  should  receive 
them  there;  and  a  custom  in  ChicMi^o  that  a  consiy;nee  of  a  ve<s(d  is  al'owed  onr 
day  iifter  notice  of  her  arrival  in  which  to  provide  a  dock  or  plat  e  for  unload- 
ins  lier,  has  been  recoj^ni/.ed.' 

Where  it  is  the  custom  at  lake  ports  for  i;;rain-bearins  vessels  to  iinhjad  in  the 
order  of  their  arrival,  the  sliin-owner  must  await  Ids  turn  for  a  reasonable  time, 
to  be  measured  by  the  ordinary  volume  and  the exi:?encies  of  trade  at  thai  place; 
and  it  has  been  held  that,  such  a  custom  being  reasonable,  it  is  not  within  the 
power  of  a  ship-owner,  by  notice  to  a  consignee,  to  define  an  arbitrary  period 
within  which  his  cargo  must  be  discli.irged.'^  And  a  (uistoui  at  the  port  o!  IJal- 
timore  to  stop  discharging  cargoes  of  brimstone;  when  there  is  a  luLrli  wind, 
because  brimstone  is  a  sul)stance  liable  to  be  blown  away  in  the  handlMii:  neces- 
sary to  unload  it  from  the  ship,  has  been  held  a  suDicient  justilieaiion  <>n  the 
part  of  a  consignee  of  a  load  of  brimstone  in  refusing  to  recciive  it  on  a  windy 
day.^  A  usage  at  New  York  to  receive  shipments  during  the  <inarant!ne  sea- 
son at  the  quarantine  grounds  would  excuse  a  delivery  then;  where  the  bill  of 
lading  expressed  the  delivery  to  be  made  at  the  "  port  of  New  York."  * 


;y-i 


§  88.  Cases  w^here  an  alleged  Custom  as  to  Delivery  did  not  prevail.  — 
In  Galloway  v.  Hughes,-'  the  court,  after  Ik  aring  the  witnesses  to  tin;  alleged 
custom,  ruled  that,  according  to  the  usage  at  Charleston,  landing  cotton  on  the 
wharf  was  not  a  fulfilment  of  the  carrier's  contract  to  deliver,  l)ut  that  it  should 
have  been  deposited  in  the  public  stores  in  the  consignee's  name.  In  The 
Sultana  v.  C/iapman,*  the  jury  found  that  a  usage  set  up  by  tlie  defendants  to 
deliver  goods  at  a  pier  extending  into  Lake  Michigan,  instisad  of  at  the  ware- 
house or  place  of  business  of  the  consignees,  was  not  established,  and  the  court 
refused  to  disturb  the  verdict.  In  The  Mary  Washington  v.  Aip-es,  decided  in 
ilie  Uintcd  States  Circuit  Court  for  the  District  of  Marylaml  by  Chief  Justice 
r'uvsK.,^  merclt.indise  transported  by  water  was  landed  at  the  carrier's  wharf,  and 
MO  one  being  there  to  receive  it,  was  placed  in  their  warehouse  on  the  wharf, 
where,  before  it  was  removed  by  the  consignees,  it  was  damaged.  No  notice 
liiu!  been  given  of  its  iirrival.  It  was  held  that  tlu;  carrier  was  liable.  "The 
liuty  of   a  carrier  by   water,"   said    the   chief   justice,    «'  is  not  fulfilled    by 


^:  ii 


'  KiiltDi,  V.  Blalie  (I'.  S  Dist.  Ct.  North. 
Disl.  Ill,),  12  Am.  L.  Kej?.  {\.  s.)  779. 

■•'  TIk;  M.  S.  na<;oti  r.  Krle,  etc.,  Transp. 
Oo.  (ir.  s.  Oil-.  Cl.  West.  Disl.  Pa.),  11  Fillsb. 
!■■  .1.  :!.").  Ami  HOC  Cross  c.  Uenrd,2(;  N.  Y.  85 ; 
UnpriMs  r.  Forrester,  2  Camp.  485;  Ranister 
'•  lli>il'."5nn,  ■:  rainp.  483;  Crouchr-  v.  vVi' 


der,  OS  Mass.  Vli;  Consolidation  Coal  Co.  ti. 
Shannon,  M  .Md.  144. 

^  Bortollati  o.  A  (Jargo  of  Brimstone   (IJ. 
g.  Dist.  Ot    Dist.  Md.),  11  Cent.  L.  J.  ;»4 

«  Bradstrcet  v.  Heron,  Abb.  Adm.  209. 

»  1  Bailey.  .553. 

«  r>  Wis.  4r)4. 
r.  Am   I..  (leR.  (H.  8.1  KK. 


I  .^1 

■  Ja 


'III 


228 


IN    DIFFERKNT    RELATIONS    AND    OCCUPATIONS. 


Common  Carriers. 


simple  transportation  from    port    to  port.     The  goods    must   be  delivcrpfl 
or  at  least  landed,  and   a  rciisoiiable  opportunity  given  to  the  con-^imuc  of 
ascertaining  their  condition.     In  order  tliat  opportunity  for  inspection  uml  for 
the  removal  of  the  goods  may  be  given,  the  consignee  must  be  notified  of  the 
arrival  of   the  goods.     This  is  the  general  rule.     If  exceptions  arc  made  by 
usage,  circumstances,  or  special  arrangements,  they  must  be  shown   hv  proof. 
In  the  present  case,  the  respondents  allege  tliat  it  was  not  tlieir  praclicc  to  <;;ve 
notice  to  consignees;  but,  instead  of  giving  sucli  notice,  to  deposit  goods  in  iluir 
warehou.se,  where  the  consignees  were  expected  to  call  for  them  on  Iciuiilnz 
from  their  correspondents,  or  otherwise,  of  their  arrival.     They  insist  tlial  this 
arrangement  was  for  the  benefit  of  the  owners  of  tlie  goods,  and  was  mulcr- 
stood  and  agreed  to  by  them.    The  evidence  does  not  sustain  tliis  cjaiiii.    Ii 
sliows  clearly  enough  tlie  practice  of  the  resi)ondents,  but  it  does  not  sliow  any 
understanding  on  the  part  of  tlie  owners  of  the  goods  tliat.  tlie  resp(Miil('nis 
were  to  l)o  relieved  from  tlicir  responsibility  as  carriers  until  its  actual  (Klivc  rv, 
or  its  equivalent  deposit  in  their  wareliouse,  witli  information  conveyed  to  thi' 
owners  in  some  way  that  tlicir  goods  had  arrived.     Tlie  warehouse  ananutMiont 
was  rather  for  the  convenience  of  the  carriers  tliau  of  freigliters  or  consi^'nees. 
Tiie  storage,  with  information  of  arrival,  however  obtained,  may  he  regarded 
properly  enough  as  a  substitute  for  actual  and  direct  notice;  and  it  may  h- 
admitted  that  opportunity  for  removal,  after  such  information,  would  discliargi' 
tlie  carriers  from  responsibility  as  such,  in  the  sanu'  manner  as  actual  notice' 
and  like  opportunity.     But  to  hold  tliat  mere  deposit  in  their  own  warclionsp, 
under  the  circumstances  of  this  case,  terminated  tlieir  special  responsibility, 
would  be  a^daugerous  relaxation  of  the  salutary  rule  on  whicli  the  security  of 
commerce  so  largely  depends."    The  custom  of  lake  ports,  that  on  the  failiip' 
of  consignees  to  provide  for  the  delivery  of  the  property  consigned  to  them,  for 
twenty-four  hours  after  the  report  of  its  arrival,  the  master  of  tlie  vessel  i^ 
entitled  to  store  the  freight,  subject  to  charges,  at  the  nearest  jiort.  is  nor  a 
reasonable  one  at  Port  Colborne,  on  Lake  Erie,  where  there  is  no  facility  foi'  the 
discharge  of  tlie  cargo  except  at  one  place,  and  where  it  is  the  custom  of  the 
port  for  vessels  to  wait  their  turn  at  that  place.' 

§  89.  Cannot  prevail  against  Express  Directions.  —  Usage,  however,  cannot 
be  set  up  as  against  the  express  directions  of  the  shipper,  or  an  express  contract 
between  tlie  parties,  and  such  directions  the  carrier  will  disobey  at  his  peril. • 
A  few  examples  of  this  rule  will  suffice:  M.,  a  common  carrier,  received  from 
W.  an  anchor,  witli  directions  to  deliver  it  to  "Messrs.  Bell,  Anchrani  &  Uiix- 
ton,  Rotherliitlic."  M.  delivered  it  at  Ilotherhithe,  instead  of  to  the  jiersoiis 
specified.  A  custom  on  the  part  of  carriers  not  to  concern  tliemselves  about 
goods  after  tliev  had  been  delivered  at  the  wharf  did  not  protect  M.^  S.  deliv- 
ered a  horse  to  a  railroad  company  to  be  transported  from  Boston  to  Porilaiid, 
with  orders  to  have  it  placed  in  a  close  car.  The  horse  was  carried  mi  an  open 
car,  and  sustained  damage.  The  railroad  was  held  liable  for  the  daniaxt', 
althougli  it  was  its  custom  to  carrv  horses  in  either  kind  of  a  car  iiidiscriini- 


I  Strong   t>.  Cnvringtoii    (U.   S.    Dist.  Ot. 
North.  Dist.  N.  Y.),2  Am.  L.  Itcg.  (S.  s.)287. 
Iftitch.  on  Our.,  §  :tlO. 


■■'  Warden  r.  Mourillyan,  i  Ksp.  m. 
aeeStrceterv.  Horlock,  1  Iling.  3». 


\nil 


^Pfli 


(  OMMON    CAUUIEKS. 


229 


Express  Directions  Govern. 


ii;it(;ly.'    The  aj^cnt  of  a  steamsliip  company  at  Havre  gave  B.  a  bill  of  lading 
(if  (I  rtain  goods,  wlilcli  the  company  undertook   to  carry  to  Liverpool  on  its 
stcaiii-ihip  and  there  transship  theraou  board  the  City  of  ManchesUM-,  whicli  was 
aiipoiiilcd  to  sail  on  Septemlxsr  0th,  and  failing  shipment  by  her,  then  by  the 
tlist  steamship  sailing  after  that  date.     The  goods,  however,  }>rrived  at  Liverpool 
earlier  than  was  expected,  and  in  time  for  the  City  of  I'hiladelphia,  one  of  the 
company's  steamships,  which  sailed  on  the  30th  of  August.    The   defendant 
company  therefore  placed  a  portion  of  tliem  on  the  City  of  Philadelphia,  and 
tliat  vessel  being  lost  on  the  voyage,  it  was  h(!ld  that  they  were  liable  for  the 
(leviation,   notwithstanding  a  custom  among   shippers   that  goods  should   be 
sliii>i)ud  to  their  destination  with  all  possii)le  dispatch,  and  by  the   first  vessel 
sailing  after  tlieir  arrival  at  Liverpool.^    So,  in  a  late  Knglisli  case  the  defendant 
diartiired  a  vessel  from  tlie  plaintiff  for  a  particular  voyage.     In  the  charter- 
party  it  was  agreed  that,  after  loailing,  the  vessel  should  proceed  to  a  safe  port 
in  the  United  Kingdom,  or  on  the  continent  between  Havre  and  Hamburg,  both 
ports  included,  as  ordered,  or  "  so  near  thereto  as  she  could  safely  get,"  and 
(iilivcr  the  cargo  on  being  paid  freight.     The  vessel,  on  being  ordered  for  Ham- 
bur;;,  sailed  for  that  port;  but  on  account  of  her  drauglit  of  water  she  could  not 
got  nearer  to  Ilanibiirg  than  Stade,  at  which  place  the  plaintiff  offered  to  deliver 
tin;  c.irgo,  or  so  mucli  of  it  as  would  lighten  the  ship  and  (liable  her  to  proceed. 
The  defendant  refused  to  accept  any  of  the  cargo  at  Stade;  and  in  ortier  to  earn 
tlie  frciglit,  the  plaintiff  discharged  part  of  the  cargo  into  lighters,  in  which  it 
was  conveyed  to  Hainburg,  and  there  delivered  to  the  defendant's  agent.    The 
vessel,  being  tlms  liglit.ened,  arrived  at  Hamburg  and  delivered  the  remainder  of 
the  cargo.    The  action  was  for  breach  of  t\w  charter-party  in  refusing  to  accept 
any  of  the  cargo  at  Stadt;,  and  the  plaintiff  claimed  as  damages  the  expense  in- 
curred by  him  for  lighterage  from  Stade  to  nanil)urg.    The  defendant  pleaded  a 
cnstoin  of  the  port  of  Hamburg,  by  which  he  was  not  bound  to  accept  at  any 
place  but  Hamburg.     But  the  Court  of  Appeal  held  that  tli(!  custom  of  Ham- 
Inirg  could  not  override  the  express  agreement  in  the  cliarter-party,  and  that  the 
plaintiff  was  entitled  to  the  lighterage  expenses.^    And  where  wheat  was  to  be 
transported  Ijy  the  carrier  to  New  York  on  account  and  order  of  one  Bissell,  and 
the  bill  of  lading  contained  the  memorandum,  "  Notify  E.  S.  Brown,  N.  Y.,"  and 
the  carrier  delivered  the  wheat  to  Brown  instead  of   I'lissell,  it  was  held  not 
admissible  to  show  that  by  the  custom  at  New  York,  under  such  bills  of  lading, 
property  was  rightly  delivered  to  the  person  to  be  u(nilieil.<     IJut  a  custom  that 
bills  of  lading  for  morcliaudise  stiipped  are  delivered  only  to  the  party  holding 
the  receipt  of  tlie  master  or  agent  of  the  vessel,  and  upon  its  surrender,  has 
been  recognized  in  New  York.* 

§ '.)0.  Delivery  on  prohibited  Days. — The  carrier  must  not  land  the  goods, 
nor  can  he  reciiiire  the  consignee  to  accijpt  them  or  take  tliem  away  on  the  Sab- 


( 


III 


!< 


1  --i' 


h 


i 


mm 


t'^ 


9l 


41: 


■ :  m 


M 


'm 


'  Sagert).  Portsmouth,  etc.,  K.  Co.,  :?1  :Me. 
228. 

-  naziii  V.  Steamship  Co.,  ;5  Wall.  jr.  'l•i'^. 
And  see  Kxpress  Co.  v.  Kountze,  s  Wall. 
W2;  Diiu.^eiii  ,..  Waile,  ;i  111.285;  MaKliee 
».  Camden,  etc.,  U.  Co.,  4-5  N.  Y.  5U;  Hast- 


ings V.  Pepper,  II  Pick.  41;  The  Star  of 
Hope,  17  Wall.  (;,jl. 

'  Hiijtori  V.  Iiwiii,  28  Week.  Rep.  i;is. 

^  Bank  of  Coinnienic  v.  I?i.'»Boll,  72  N.  V. 
61.^5;  Kaimers',  etc.,  Hunk  v.  Kric  It.  Co.,  72 
N.  Y.  IS.S. 

'"  lilosKoin  i\  Champion,  37  Barb.  ^>'>i. 


-  .% 


I 


mi 


11 


•J-.'A) 


IN     DrFl'KKKNT    RELATION'S    AND    OCCUl'ATION.S . 


Common  Carriers. 


bath,  or  upon  any  day  on  whkrli  l.ihor  is  forbidden.     But  that  a  certain  day  is  a 
holiday  by  proclamation  or  statnlf  will  not,  unless  labor  be  also  intcnlicted, 
afford  any  excme  to  tlie  consiy;nee  lor  not  receivina;  and  removing  the  ;,'(>()(|s; 
and  if  lie  fall  to  Co  so,  and  tliey  are  lost  during  tiie  delay,  he,  and  not  tlu'  cnrritir, 
must  bear  the  lo.s«.    Therefore,  in  Richardson  v.  Goddard,'  a  day  appoiiiiiij  hy 
the  fifovcrnor  of  Massachusetts   as  a  iieneral   fast-day,  and   in  Russrll  Munu- 
facturing  Company  v.  New  Ihivpn  Steamboat  Compan;/,'  the  4th  of  July,  were  held 
to  be  proper  days  on  which  to  tender  and  receive  tlie  goods.     But  in  the  tirst 
case  the  court,  after  resolvina;  that  then;  was  no  law  in  tlie  State  of  M  is>  i- 
chnsetts  prohibiting  the  transaction  of  business  on  the  day  in  (piestion,  in(|iiirtil, 
tirst,  whether  there  was  any  general  custom  or  usage  engrafted  into  the  com- 
lucrcial  or  maritime  law  prohibiting  the  unlading  of  vessels  and  a  tender  of 
freight  to  the  consignee  .n\  a  day  set  apart  for  a  church  festival  or  fast;  and, 
secondly,  whether  there  was  any  special  custom    in  the  port  of  Boston,  where 
tlie   goods   were   brought,  forl)idding  a  carrier  to  unload  a  vessel   on   sncli  a 
day,  an(i  compelling  him  to  observe  it  as  a  holiday.     Answering  tlie  tirst  (nicslion 
in  the  negative,  the  court  (Uijimk,  J.,  delivering   the  opinion)  say:    "After  a 
careful  examination  of  the  testimony,  we  are  compelled  to  say  that  we  (lid  no 
sufficient  evidence  of  such  a  peculiar  custom  in  Boston,  differing  from  tli;ii  o  all 
other  commercial  cities  in  the  world.    The  testimony  shows  this,  and  no  more: 
That  some  persons  go  to  church  on  tliat  day;  somt^  close  the  wii'dows  of  tlieir 
wai chouses  and  shops,  and  either  abstain  from  work,  or  do  it  privately;  some 
work  half  tlic  day,  and  some  not  at  all.     rii!)lic  ofllccrs,  scliool-boys,  appren- 
tices, clerks,  and  others  who  live  on  salaries  or  prefer  pleasure  to  business, 
claim  tlie  privilege  of  holiday,  while  those  who  depend  on  their  daily  Inhor  for 
their  dally  bread,  and  cannot  afford  to  be  idle,  pursue  their  occupations  as  nsn  il. 
The  libellants  appear  to  have  had  no  conscientious  scruples  on  tlie  subject,  as 
they  received  goods  from  other  ships,  and  some  from  this.     But  the  testimony  is 
clear  tl'.at,  however  great  the  numbt^r  may  be  who  clioose  to  convert  tlie  day  into 
a  voluntary  holiday  for  idleness  or  amusement.  It  never  has  been  the  custom 
that  vessels  discharging  cargo  on  the  wharves  of  Boston  ceased  on  that  day; 
that,  like  the  canon  law  regarding  church  festivals  and  holidays  of  other  coun- 
tries and  former  ages,  the  custom  of  Boston,  if  it  amount  to  anything  more 
than  that  every  man  might  do  as  he  pleased  on  that  day,  did  not  extend  to 
vessels  engaged   in   foreign  commerce,  or  forbid   the  carrier  to  continue  tlie 
delivery  of  freight  on  that  day."     And  in  the  New  York  case ''the  court  said: 
"The  4th of  July  is  not  a  legal  holiday,  except  for  certain  specified  purposes  not 
aff(>cting  this  case,     ft  presented  no  legal  obst.iele  to  the  removal  of  the  goods. 
But  we  think  that  the  evidence  as  to  the  usage  claimed  by  the  i)lainiiff  to  exist 
in  respect  to  receiving  goods  on  that  day  should  luive  been  siihiiiitted  to  tlie 
jury,  and  that  they  should  have  been  charged,  as  retpiested,  that  in  case  there 
was  snch  a  usage  or  established  course  of  dealing  in  that  respect  as  wa-;  clii'niL'd 
by  the  plaintiff,  the  consignee  was  entitled  to  a  reasonable  time  after  l  lial  day 
to  remove  the  goods." 


I  215  How.  28. 

.-.0  N.  Y.  in.    And  see  Kly  v.  Manhattan 
.si;'Miii!>oat  Co.,  5;>  Uiivb.  UOT. 


^  llussell  Man.  Oo.  v.  New  Haven  St  am 
boat  »;o.,  M  N.  V.  121. 


CdMMON    CAUK1EK.S. 


L^.l 


Delivery  by  Express  Companies. 


§  91.  Means  for  Delivery.  —  If,  by  the  usas»e  of  the  place  and  trailc,  the  appli- 
.uiits  for  tlio  delivery  of  heavy  arlicles  are  furnished  by  the  consij^nees,  the 
niricr  will  not  be  liable  for  injuries  to  the  goods  caused  by  defects  in  such 

i{i|>liaDce8.i 

))  !)2.  Usase  may  enlarge  the  Carrier's  Duty.  —  Usa"j;u,  however,  may  enlarge 
t'l.  duly  of  a  railroad  ('.oui|)any,  and  make  it  iieces.><!;ry,  in  order  to  discharge  its 
0  iLralion,  that  there  should  be  something  approaehinj;,  to  a  personal  delivery  — 
a«,  where  it  has  been  the  custom  of  a  railroad  to  deliver  <vrs  loaded  with  lumber 
lor  the  plaintiff  at  or  near  the  plaintiff's  place  of  bnslnes  .,  it  will  not  be  excused 
ill  :i  Inter  case  by  deliverinit  the  lumber  at  its  depot.'  And,  therefore,  where  it 
appeariMl  that  according  to  the  custom  of  a  steamboat  its  hands  were,  '>u  arrival 
ai  New  Orleans,  in  the  liahil  of  taking  the  passeni?ers'  trunks  from  tht;  boat  to  a 
railroad  statiim  and  jjettini?  them  checked,  it  was  held  tliat  the  owners  of  the 
boat  were  liable  for  a  non-delivery  at  the  railroad.^ 


ffl 


ii^lilti 


§  93.  Complete  Delivery  not  affected  by  Usagre.  —  We  have  seen,  in  a  former 
section,*  that,  the  delivery  to  a  carrier  being  complete,  a  usaj^e  on  his  part  tliat 
the  delivery  is  not  considered  complete  will  not  affect  the  ea.se.  A  similar  rule 
prevails  as  to  delivery  by  a  carrier.  In  Reed  v.  Richardson,^  the  plaintiffs  shipped 
nine  bales  of  cotton  from  Lady's  Island  to  Savannah,  on  a  sloop,  but  only  six 
of  them  were  received  at  the  defendants'  wareiiouse,  and  the  question  was 
wliether  there  had  been  a  delivery  of  the  whole  number  by  the  master  of  the 
vussel  to  the  defendants.  No  receipt  was  taken  for  tliem  by  the  master;  and  the 
defendants  offered  evidence  of  a  usage  of  the  port  of  Sav.innah  that  In  order  to 
constitute  a  delivery  of  water-borne  goods  by  the  carrier  it  was  necessary  for  a 
receipt  to  be  given  by  the  consignee  or  his  agent,  and  until  then  the  liability  of 
the  carrier  continued.  It  was  held  that  this  evidence;  was  properly  rejected. 
"The  usage  in  question,"  said  the  court,  "is  objectioiiable  and  invalid,  lor  it 
uiuls  to  contravene  the  fixed  rule  of  law.  By  the  common  law,  a  carrier  is  dis 
charged  of  his  duty  when  he  has  made  an  actual  or  constructive  delivery  at  the 
proper  place  and  time.  Doubtless,  usage  may  regulau;  the  uiaiiner  of  delivery, 
or  the  time  when  or  the  place  where  it  may  be  made.  This  would  be  within  the 
ledtimate  range  of  the  operation  of  a  usage.  IJut  ii,  'laiuiot  prescribe  or  deter- 
mine that  acts  which  the  law  declares  to  be  a  delivery  shall  not  be  sufflcieut  to 
constitute  it.  Such  was  the  effect  proposed  to  be  given  to  the  evidence  in  the 
cast!  at  bar.  Delivery  at  llu'  appoiuteil  time  and  phuv;  would  not  have  proved  a 
fultllment  of  tlie  contract  if  the  usage  was  to  have  effcet." 

§  94.  Express  Companies  and  Delivery  by.  —  We  have  seen  in  a  former  sec- 
tion,* thai  express  companies  are  not  within  the  modern  rule  allowing  common 
carriers  lo  dispense  with  a  personal  delivery  to  the  consignee.  To  this  modifi- 
cation of  the  old  law  express  companies  owe  their  origin.  Depositing  in 
warehouses,  whether  with  or  without  notice  to  the  consignee  or  owner,  wiili  the 


•  Lovcland  v.  Rurkc,  120  Mass.  139. 

■  Piitbbuig,  etc.,  It.  Go.  V.  Naah,  43  Ind. 
423. 

'  Fisher  t>.  Gcddes,  15  La.  An.  14;  Xevins 
».  Bay  state  Steamboat  Co.,  4  Bosw.  -llo. 


«  Ante,  §  82. 
6  <.W  .\las.s.  216. 
«  Ante,  §  m. 


I 


!ii 


'    M 


m^M 


282 


IN    DIFFUUBNT    KKLATIONS    AND    «)<  (JUl'ATIONS. 


1    t    ! 


Common  CarriiTs. 


requiniMitnt  that  he  should  call  for  thorn,  was  fouml  to  be  unsuitable  for  ihi'  car- 
ria<?t;  of  small  and  valiiabio  parcels,  as  well  as  troul)los(Mn(!  to  the  consinin'i's. 
To  avoid  this  inconvcMit;iice,  as  well  as  to  secure  greater  safnuy  and  disp.itch  in 
the  transportation  and  delivery  of  valuable  packages,  carriers  who  undertook  lo 
make  delivery  to  the  consignee  personally,  although  their  line  of  travel  nii^'lit  lie 
identical  with  tl  .3  of  the  water  carrier  and  tlie  railroad  carrier,  and  i'\i:a 
thou,t;h  they  rni;;ht  employ  the  vehicles  of  t'.nse  carriers  to  effect  the  transp  .na- 
tion, became  necessary.'  Startin'jj  in  the  United  States  in  Uh;50,  in  a  huinbli'  \v:n, 
the  express  business  now  extends  into  every  Slate  of  the  Union;  is  carried  nu 
by  numerous  wealthy  and  powerful  corporations,  with  an  invested  ca|)ital  of 
ov<!r  thirty  millions  of  dollars,  and  carrying  for  the  j;overniuent  and  piivati 
individuals  over  two  billions  of  dollars'  worth  of  property  every  year.'  Uut 
precisely  as  these  modern  carriers  have  become  rich  and  powerful,  have  tlii;y 
endeavored  to  cast  off  some  of  the  duties  to  perforin  which  they  came  iiiio 
beinj».  Amon;;  them  is  tlie  duty  of  peisonal  delivery;  and,  as  will  be  seen  \ms- 
ently,  the  courts,  while  showin<;  an  unwilliimness  to  relax  this  obli;.;atioii,  jiave 
in  one  or  two  instances  permitted  an  express  company  to  show  a  usaj^c  ou  its 
part  not  to  perform  its  full  duties.' 


ir 


§  95.  Same  — Cases  Twhere  Usage  did  not  prevail.  —  In  a  Pennsylvania  case, 
where  a  demijohn  of  brandy  beln'4  sunt  from  I*,  to  li.  was  received  i)y  the  iunn- 
pany's  aj^ent  at  K.  and  stored  in  its  warehoii-c,  where  it  was  afterwards  brokcu, 
the  defendant  'j;avi;  evidence  that  it  w  is  cii  -loiiiary  for  the  anient  at  Iv.  to  d  ■livi;r 
packages  at  the  rcsiiKnice  of  the  consiu;uee,  at  his  option;  but  the  court  held  that 
a  personal  delivery  was  absolutely  required  of  expressmen,  and  that  the  druinl- 
ant  was  liabhv'  In  a  New  York  case,  wliere  an  expressman  uudcrlook  lo 
deliver  a  heavy  box  for  the  plaintiff,  who  lived  in  the  fourth  stoiy  of  a  buiidnii;, 
by  placing  it  within  the  outside  door  of  the  luiildin^,  at  the  foot  of  the  slaiis,  and 
notifying  a  boy  whom  he  found  in  the  ofTiee,  tlic  plaintilf  not  being  in,  it  was 
ruled  that  the  delivery  was  insulliclent,  and  could  not  be  cunid  by  a  usage  loso 
deliver  heavy  articles.  "  It  is  very  plain,"  said  Rouioiirsox,  J.,  "  that  a  ciisiora 
so  ill-delined  as  this  should  not  be  aliioved  to  trench  upon  settled  rules  of  law, 
for  the  weight  or  the  bulk  of  the  articles  remains  entirely  uncertain;  1h- 
sidcs,  it  does  not  appear  that  this  usage  was  well  known  to  all  persons  duaiiii:: 
with  such  companies,  nor  was  its  origin  and  continuance  for  any  leiiglh  of  liiiu' 
sliown.  Nor  does  it  seem  to  me  that  such  a  usage  could  ever  l)egin  to  eslahlish 
a  legal  custom;  the  delivery  of  gooils  at  a  tavern  or  known  stopping-placi' of 
the  carrier,  where  they  are  always  in  charge  of  some  one,-"  or  on  a  wharf,  after 
giving  notice  and  allowing  a  reasonable  time  lor  a  consignee  to  take  posso-imi, 
is  entirely  different  from  abandoning  parcels  intrusted  to  a  common  eanirr  in 
an  exposed  place  and  notifying  tlie  owners  that  they  are  so  abandciiLd.    U 


>  Hutch,  on  Car.,  §  379. 

*  Dinsniorc  v.  Nashville,  etc.,  R.  Co.,  10 
Cent.  L.  J.  4G3. 

■'  .AlarslKill  V.  American  Express  Co.,  7 
Wis.  1;  Baldwin  «.  .Vmoi'icau  Express  (  o., 
23  111.  l'.)7;  American,  etc.,  Express  Co.  v. 
Wolf,  71)  111.4;i();  American,  etc.,  i;xpn>,ss  (Jo. 
«.  Scliiev,  55  111.140;  SuUivun  v.  Tiiompson, 


99  Mass.  2,-)9;  Packard  v.  Earlc,  11:?  .Ma.-s.  JSO; 
Soutliern  Express  Co.  v.  Arinalead,  SO   \!a. 
XiO;  Amerii;an,  etr.,  E>;pres.s  Co.  r.  llcbjii 
son,  72  I'ji.   St.  -271;  Witbuck  v.  Hollaml.  «j 
N.  Y.  l;l;  .W  Uarb.  4t:!. 

*  American,  etc.,  I'Jxprcss  Co.  v.  linlnu- 
son,  72  I'a.  .St.  '274. 

•■  tiibsou  V.  Culver,  17  Wenil.  a05. 


rOMMON    CARKIRK8. 


2.J3 


Dclivory  by  KxpnMS  Compiinics. 


would  in  all  cases  i)o  u  very  doubtful  chance  wliofhor  tho  ownor  In  a  fourth 
8tory  or  a  niaraiu\;!r  in  the  str«!t't  would  flrst  reach  the  prize,  even  .supposiui; 
the  "Wiier  or  his  representative  ready  at  all  times  to  rusli  swiftly  dovvn-staiis, 
»ii(l  able  to  carry  tlie  packaije  up,  whicii  was  too  heavy  for  the  driver;  an  i, 
Indeed,  ttic  box  in  tliis  case  does  not  seem  to  have  been  one  whicli  the  only  per- 
son notirted  (a  l)oy  of  fourteen  years  of  a^e)  could  have  re;i(liiy  truiisixn-led  to 
» fourth  story.  The  law  is  excecdin;?ly  jealous  of  any  innovation  upon  liie 
re><p<)nsii)ility  of  common  carriers,  even  by  expnsss  contra<a,  miicli  more  by 
nsa-^os,  and  the  expn^ss  business  most  of  all  re(piires  that  tlie  most  uniform  ami 
constant  dereliction  of  duty,  how<!ver  successful,  should  not  enable  carriers  to 
evade  liahility  for  a  lost  parcel  committed  to  tiieir  care,  by  gottini;  up  a  usai;o."  ' 


M 


Ml 


Nm^  ■ 


§  %.  Same  —  Usagfe  permitted  to  relax  their  Obligations. —  But,  notwilli- 
Rtandin;?  the  reasons  of  public  policy  to  wliich  tlie  court  in  Ilu.ilam  v.  Adnns 
E/pri'sa  Compmvj  appealed,  and  whicli  must  be  suHlcicntly  obvious  to  tlie 
student,  it  will  be  found  that,  "by  !?ettinj»  up  a  usa'^e,"  express  carrier-! 
have  in  several  instances  been  permitted  by  the  courts  to  escape  a  liability  to 
which  the  establislied  rules  of  law  would  have  ueld  them,  lii  s(!veral  cases  it  is 
said  that  evidence  of  usa-je  in  such  matters  will  be  Iool<o(l  upon  with  suspicion, 
but  that  at  places  where  the  business  of  an  express  company  is  not  sulUi-ieut  to 
justify  the  keepin'.:;of  a  messen'^er,  a  custom  ou  its  part  to  substitute  notice  for 
delivery  will  be  sufflcient.'  A  custom  of  deliverini;  paclcau;es  after  l)anl\in!j;- 
hours  has  l)een  admitted  to  mal\c  valid  a  deliviU'y  which  otiierwise  would  have 
been  invalid,^  and  so  of  a  delivery  to  the  officer  of  a  bank.*  In  two  cases, 
decided  in  tlie  same  year,  but  in  different  States,  usa;?c  was  successfully  ndied 
upon  to  excuse  a  delivery  to  a  person  otiier  than  tlie  one  to  whom  the  packai?e 
was  addressed.  In  Snuthorn  Kr.pmsn  Cmnpnn])  v.  Eor.reM,^  a  small  paper  liox 
contaiuinu;  a  diamDnd  breastpin,  and  addressed  *'  .Miss  Tlieodosia  lOverett, 
Female  Coileire,  Macon,  Ga.,"  was  delivered  to  the  agent  of  tiio  company  at  Fort 
Valley,  Georgia,  for  transportation  to  the  address  given.  The  box  was  duly 
transmitted  to  Macon,  and  delivered  to  Dr.  Bonnell,  the  presiiliMit  of  the  feinaie 
college,  unopened;  and  he  handed  it  to  Miss  Everett,  who  opened  it  and  found 
the  breastpin  wanting.  Miss  Everett  was  a  student  at  the  college.  Inasint 
for  the  loss,  the  trial  court  charged  the  jury  tliat  the  delivery  to  Dr.  Bonnell  was 
not  a  legal  delivery  whicii  would  discharge  the  defendants.  But  the  Supreme 
Court  of  Georgia  reversed  the  case,  Waknkk,  C.  J.,  saying:  ••  Tlie  general  rule 
is  that  the  responsibility  of  tlie  carrier  ceases  with  the  delivory  of  the  goods  at 
destination,  according  to  the  directions  of  the  shipper  or  ac-ording  to  the;  cus- 
tom of  the  trade.  A  delivery  of  goods  to  a  duly  authorized  agent  of  the  owner 
or  consignee  is  a  sulllcient  delivery.  Tiie  person  to  whom  the  box  was 
addressed,  the  record  shows,  was  a  student  in  the  college  under  the  charge  of 
Dr.  Bonnell,  and,  as  we  infer  fron  the  record,  was  a  minor.  Was  it  one  of  the 
rules  of   the  college  that  all  articles  and  communications  addressed  to  the 


1  Hnplam  ».  .\danis  Kxpress  Co.,6Bo8w. 

233. 

2  Ralilwin  v.  American  Express  Co.,  23 
111.  1!W;  American,  etc.,  Express  Co.  v, 
SchiL'i-,  ,■).")  III.  140;  Gulliver  c.  Adams  Kxpress 
Co.,  38  111.  503. 


s  Marshall  v.  American    Express  Co.,  " 
Wis.  1. 

<  Hiitchkiss  (•  Citizens'  ISank,  42  Barb.  .517. 
■•  37  (ia.  6.S8 


i ) 


234 


IN   DIB'FERBNr    KKLATIONS    AND    OCCUPATIONS, 


Cuiiiinon  Carriers. 


\\\ 


' 


students  therein  should  be  first  delivered  to  the  president  thereof?  \Vh:it  whs 
the  custom  of  the  president  of  Lliis  college  in  receiving  parcels  :i(Mn'-.>.  •!  >  Ju. 
students  under  his  charge,  from  the  defendant?  If  it  was  the  custdin  tor  Dr. 
Bounell,  the  president  of  the  college,  to  receive  from  the  defeuil mi  piiiils 
directed  to  the  students  therein  under  his  charge,  ami  receipt  therefor,  oi  if  it 
was  in  accordance  with  the  rules  of  the  college  thai  he  should  do  so,  tlnii  hu 
might  properly  be  considered  as  the  authorized  ag(!iit  of  the  studciUs  iiiulcr  liis 
charge  for  that  purpose,  and  the  jury  might  presume  a  good  (l(!livcr\  of  ilic 
parcel  to  the  student  of  the  college  to  whom  it  was  addressed,  wlini  ililivi  r,il 
to  the  president  thereof."  In  Sullivan  v.  Tkompaon,^  a  box  marki-d  ■' \Vm. 
Sullivan,  Government  Bakery,  Washington,  D.  C,"  upon  arrival  at  Wasliingtou 
was  delivered  by  the  defendants'  agent  to  one  Kverett,  a  clerk  in  thi;  govern- 
ment bakery  in  which  Sullivan  was  employed.  When  the  box  was  dulivenKl  to 
the  clerk,  the  plaintiff  was  not  present  in  the  oiliee,  nor  was  he  sent  for;  and  tin- 
box  never  came  into  his  hands.  On  the  trial,  the  defendants  offered  to  show  lIkiI 
during  the  period  while  Everett  was  clerk  at  the  bakery  it  was  the  uniform  usa^c 
for  all  expressmen  bringing  parcels  there,  addressed  to  any  of  the  men  tlicie 
employed,  to  deliver  the  same  at  the  office  to  some  one  of  the  clerks  therein  at 
the  time,  taking  his  receipt  therefor,  without  notice  to  the  consignee;  but  Mie 
jiiiige  excluded  theevidence.  This  was  held,  on  appeal,  to  be  error.  ".\ll  tliiir 
reasonable  usages,"  said  Chapman,  C.  J.,  "would  enter  into  their  eontnut 
and  become  a  part  of  it,  and  their  liability  would  be  limited  by  such  nsaiji's. 
Tiiese  usages  consist  in  methods  of  doing  business;  and  when  a  party  emplovs 
them  to  carry  a  package,  and  asks  for  no  special  sti|)iilalion,  his  iu'plied  propo-al 
is  that  they  shall  carry  and  dispose  of  the  package  in  the  sanje  manner  as  tiny 
are  accustomed  to  do  with  such  packages,  proviiled  it  be  reasonable ;  and  lliis  is 
the  proposal  which  they  impliedly  accept,  and  it  constitutes  the  contraet,  excei.t 
so  far  as  it  is  varied  by  express  stipulations.  Some  of  their  usages  an-  addiiud 
with  reference  to  the  compensation  charged  by  them.  It  is  imporlaiil  id  llie 
public  that  goods  be  carried  as  cheaply  as  possible,  and  in  order  to  imit  this 
want  it  is  expedient  to  adopt  usages  which  shall  save  expense.  Tlie  iisanc  may 
relate  to  the  delivery  of  goods.  The  usage  of  the  defendant  in  this  nsiHci  is 
slated  in  the  report.  The  only  question  that  can  arise  respecting  it  i>,  wIkI'ut 
it  is  reasonable.  This  must  depend  somewhat  upon  the  eliaracLer  of  the  piiip- 
erly  to  be  delivered.  If  it  were  a  heavy  article,  of  no  great  value,  and  wiiicli 
might  safely  be  left  exposed,  it  might  be  reasonable  to  leave  it  on  the  premiss 
whi're  the  consignee  resides,  in  an  exposed  position.  On  the  other  hand,  if  il 
wi'ie  a  iiaekage  of  money,  or  article  of  similar  value,  it  might  not  be  reason  ilih' 
to  deliver  it  even  at  the  office  or  counting-room  of  the  consignee  without  put- 
ting it  in  the  care  of  siiine  reliable  person.  In  the  present  case  it  was  a  l)ii\  of 
olotning.  It  was  delivered  within  business  liours  at  the  office  of  the  ;.MV(rii- 
ment  bakery,  which  was  the  only  part  of  the  bakery  where  the  tlelend mis' 
agents  could  go,  to  a  government  clerk  there  employed,  who  alone  occupied  llic 
offiee  and  had  charge  there,  and  who  received  the  parcel  for  the  plaiiitil'f  :iiil 
gavt!  a  receipt  therefor.  This  was  in  conformity  with  the  well-known  nsai  ■  •>! 
the  nnvnagers  of  the  bakery  and  with  the  usage  of  the  defendants.  Conoid,  linu' 
the  uaturc  of  the  property  and  the  circumstances,  the  court  are  of  opinion  iliil 


>  99  Mass.  359. 


■'  i 


»H 


COMMON    CAltUICKS. 


235 


Connecting  Carriers. 


the  iisa^c  was  not  unreasonable,  and  that  dofondaiits  fulfilled  their  contract  if 
tlicv  (lulivcred  the  box  in  conformity  with  it."  The  cou'^lusion  in  this  case  may 
!]>  correct;  but  the  roinarks  of  the  chief  justice  indicate  a  readiness  on  his  part 
to  curry  the  usa"'-  •-  of  trade,  and  especially  those  of  common  carriers,  to  an 
extreme  and  dangerous  point.  When,  subsequently,  in  the  same  court,  Sullivan 
V.  Tkompson  was  cited,  P^XDicorr,  J.,  remarked  that  "  it  was  decided  on  the 
pi'cnliar  circumstances  and  facts  of  the  case,  and  has  no  application  to  the 
ijiicstion  raised  here,"  and  the  court  (Chief  Justice  Chapman  not  then  being  a 
liicinbcr)  held  that  a  usage  on  the  part  of  expressmen  to  leave  packages  at  a  . 
w:iy-station,  and  to  substitute  u  notice  of  the  arrival  of  tlie  goods  for  a  personal 
(li'livcry,  could  not  bind  the  consignor  unless  known  to  him.'  Yet  it  is  to  be 
observed  that  the  court  was  still  prepared  to  uphold  the  usage,  had  it  been 
pmved  to  have  coine  to  the  kuov,  ledge  of  the  plaintiff  before  lie  made  the  con- 
tract. But  why  shoidd  express  companies  be  permitted  to  set  up  a  usage  on 
tlicir  part  doing  away  with  the  necessity  of  a  personal  delivery?  ""ley  were 
established  for  the  purpose  of  extending  to  the  public  the  advantages  of  a  per- 
-niial  delivery  in  cases  of  land  carriage,  which,  prior  to  the  introduction  of  the 
niilroad,  were  enjoyed  by  the  public.  A  custom  of  an  express  company  not  to 
!)(■  liable  as  an  express  company  is  absurd,  and  should  not  be  recognized  by  the 
ciin-ts.  Such  a  custom  may  *vell  be  considered  as  one  contrary  to  public  policy, 
ami  as  such,  as  we  shall  presently  see,  void." 

The  obligation  of  an  expressman,  on  the  refusal  of  the  goods,  to  give  notice 
thereof  to  the  consignor,^  may  be  excused  by  custom.*  Where  it  is  the  custom 
of  an  express  company  to  enter  all  packages  before  delivery  in  a  delivery-book, 
aiiil  upon  winch  a  receipt  Is  taken  upon  the  deli\ery,  if  no  such  entry  has  Ijeen 
iiiaile  upon  the  delivery-book  it  will  not  be  presumed  tliat  the  company  has  done 
its  duty.* 

§  !)7.  Connecting  Carriers.  —  A  shipper  is  bound  by  the  custom  of  a  carrier 
not  to  be  liable  for  a  package  delivered  to  him  beyond  the  limits  of  his  own  line, 
but  that  upon  bis  placing  it  in  the  h.u.vis  of  a  connecting  carrier  ids  liability 
shall  ceasr^.*  A  custom  that  iin  intermediate  carrier,  wlio  receives  property 
subject  to  charges,  may  deduct  from  the  freight  earned  by  a  prior  carrier  the 
value  of  any  deficiency  between  the  quantity  delivennl  and  that  .-tated  in  the  bill 
of  lading,  and  that  .lie  [)rior  carrier  shall  not  be  allowed  to  show  that  an  error 
occurred  instating  the  amount  in  the  bill  of  lading,  is  not  valid,  because  con- 
trary to  law  and  unrcaso  ial)le.'  Wliere  there  is  a  bill  of  lading  given  by  a 
carrier  to  the  terminus  of  his  line,  of  goods  addressed  to  a  point  beyond,  he  may 
show  a  custom  in  such  cases  to  deliver  to  a  connecting  carrier."  Where  it  is  the 
general  custom  of  the  carrier  to  forwartl  .ill  goods  destined  beyond  his  line  by 


'  I'acluiril  V.  Karlo,  11:!  Muss.  280. 

-  /'(«(,  (Miap.  V. 

'  Kremer  v.  Southern  ICxprcss  Co.,  6 
CdIiIw.  mi;  Mayoll  v.  I'dltor,  2  Jolins.  Ciis. 
371;  l''i>k  c.  Newton,  1  Dciiio,  45;  American, 
etc.,  KxprossCo.  V.  Wolf,  7;i  III.  i:tO. 

*  \V,o  I  r.  I'.arncy,  4.".  N.  V.  ;i4f. 

'  Ualdwiu  V.  American  KxprcsH  Co.,  23  111. 
197. 


n  Van  Santvoord  «.  St.  John,  6  Hill,  l.^V; 
Indianupolis,  etc.,  U.  Co.  v.  Murray,  72  111. 
128. 

■  Strong  V.  Urand  Trunk  K.  Co.,  I,")  Mich. 
200. 

"  Hooper  t».  Ohicago,  etc.,  It.  Co.,  27  Wis. 
81. 


it 


ml 

'  If 


;^l 


I! 


! !  ;u  II  k 


I 


236 


IN    DIFFEUENT    RELATIONS    AND    OCCUFVTIONS. 


Common  Carriers. 


sailin.i^-vessels,  he  is  not  liable  for  not  forwardinj^  particular  articles  by  steam- 
vessels,  unless  distinctly  ordered  to  do  so.'  But  where  the  usage  is  for  tin; 
carrier  to  deliver  beyond  the  terminus  of  his  own  line,  he  will  be  responsible  in 
accordance  with  the  usa<;e.'- 

§  98.  The  Carrier's  Charges.  — The  carrier's  reward,  —  viz.,  the  amount  which 
he  is  entitled  to  receive  for  his  services,  —  if  not  fixed  by  aj;ri;cment,  will  be  regu- 
lated by  custom ;  and,  ordinarily,  he  can  only  recover  his  customary  charges.'  if 
a  carrier  does  not  stipulate  in  advance  for  the  rate  and  terms  of  his  coinpensa- 
tion,  he  is  entitled  to  demand  and  receive  what  is  usual  in  the  j^iven  case.  If  lie 
rely  upon  usage  and  custom  for  the  rate  of  compensation,  and  they  allow  none 
In  the  given  case,  he  will  be  entitled  to  none.*  A  carrier's  charges  being  iiiijlu  r 
for  "  wrought "  than  for  ••unwrought"  marble,  evidence  that  the  usage  anions 
manufacturers,  dealers,  and  carriers  was  to  class  marble  cut  into  slabs  ii> 
'•unwrought,"  was  held  to  be  properly  received,  in  a  Michigan  case,  where  tin 
question  was  whether  the  carrier  was  entitled  to  claim  freight  on  the  goods  in 
question  as  ••  wrought  marble."  *  In  an  English  case,  the  plaintiff  broughi  an 
action  for  money  had  and  received  in  respect  of  certain  alleged  overcharges  for 
certain  packed  parcels.  The  plaintiff's  business  was  to  collect  parcels  from 
different  tradesmen,  to  put  the  parcels  into  one  package,  and  to  semi  it  Ijy  t!ie 
defendants'  railroad.  It  was  proved  that  the  defendants  issued  a  tariff  of  their 
rates,  and  that  the  plaintiff  was  charged  under  it  for  "  packed  parcels."  On  the 
trial,  evidence  was  given  (subject  to  defendants'  objections)  that  four  wlioh;>alo 
houses  in  London  were  in  the  habit  of  sending  packages  containing  their  own 
goods  and  also  the  goods  of  other  tradesmen,  and  that  they  were  never  chaiLr  ■(! 
for  packed  parcels,  but  at  a  less  rate.  The  houses  in  (luestion  were  not  usiad 
as  to  the  contents  of  their  packages,  and  it  did  not  appear  that  the  c()i;ii)aiiy  had 
direct  information  on  the  point.  Evidence  was  also  given  that  in  iSV.)  (the 
action  was  brought  in  18()5)  it  was  proved,  at  an  arbitration  in  the  presence  of 
defendants'  solicitor,  tliat  it  was  the  practice  of  the  London  houses  to  Mud 
packed  parcels,  without  charge,  by  the  defendants ;  and  the  following  (luotien 
was  allowed  by  the  court:  "Has  this  practice  of  packing  parcels  been  noto- 
rious ?  "  and  it  was  answered,  that  for  the  last  forty  years  it  had  been  so  u(  iieral 
as  to  be  notorious  among  carriers.  The  jtulge  directed  the  jury  that  tlie  aljove 
was  evidence  upon  whiclv  tliey  might  find  that  parcels  had  been  earned  i)y  ilu' 
defendants  for  other  persons,  containing  goods  of  a  like  description,  and  under 
like  circumstances,  at  a  less  rate;  and  also  upon  Avhich  they  might  tind  iliat  Ihe 
defendants  knowingly  charged  the  plaintiff  more  than  others,  and  that  if  tin,'  juiy 
believed  that  the  defendants  knowingly  and  purposely  charged  the  plaintiff  at 
a  higher  rate  upon  a  packed  parcel  than  other  persons,  they  ought  to  llml  a 
verdict  for  the  plaintiff.  The  Court  of  Exchequer  Chamber  (Kui.i;,  C.  ,1.,  dis- 
senting) hidd  the  evidence  properly  received  and  the  direc  tion  corieci."    In  a 


'  Simkins  v.  Norwich  Steamboat  Co.,  11 
Oush.  10-2. 

3  Knapp  r.  United  .States  ExpiesB  Co.,  55 
N.  II.:US 

Auk.  on  Car.,  §}  l'.>4,  35(i,  ;5.)J.  H.i-^tard 
V.  Ha-<iiird,  .Show.  81;  llnlfoni  t'.  Adams,  2 
Duel,  t'l ;  Weber  t).  Kinxbhiiui,  H  liosw.  410. 

*  Ivii'Mnnd  v.  Montgomery,  I  Swau,  \'>2. 


6  Bancroft  v.  Peters,  4  Mi(^li.  Ol'J, 
»  8utton  r.  Great  Weslerii  It.  (;o.,  11  Jin- 
^N.  s.)  879.  And  .see  Lewis  v.  Marshall.  T 
Man.  &.  G.  VS),  where  the  cvideiici!  oII.mviI 
wa.s  held  insudieient  to  prove  thai.  li;.  Hn' 
iisaRO  of  the  trade,  aleerage  pa-M'ii,u't'i-  "nn 
ship  were  considered  as  "  (sarj^o  "  ami  tliuir 
pa.'^suge  money  at.  "fndjtlil." 


(O.M.MC'M    CAhUlEKM. 


237 


Usiiiie  as  to  Charges. 


Sonth  Carolina  case  it  was  held  that,  in  an  action  to  recover  freight  for  carrying 
the  defendant'H  rico  from  iiis  plant  il  ion  to  Ciiarleslon,  the  latter  might  give 
evidence  of  a  custom  on  the  river  to  loolv  to  the  produce  and  consignee  alone  for 
frciu'ht.' 

WliLie  freight  is  paid  in  advance,  and  in  consequence  of  the  capture  or  ship- 
wreck of  the  vessel,  or  other  cause  not  imputable  to  the  consignor,^  the  goods 
are  not  carried   to  their  destination,  the  freiglit  is   not  earned,  and   may  be 
R'covcred  back,'  unless  there  be  an  express  contract  to  the  contrary.*    This 
rule,  it  is  held  in  Einerij  v.  Dimhnr,-'  cannot  bo  altered  by  usage.    The  defend- 
ants' ship,  on  which  were  the  plaintiffs'  good'*,  was  destroyed  by  a  Coniederate 
cruiser.     In  a  suit  for  the  freight,  which  tlioy  had  paid  before  the  sailing  of  the 
vessel,  the  defendants  set  up  "that  at  the  time  of  the  payment  of  the  freight  it 
was,  and  from  time  immemorial  thereuntil   liad  been,  tlie  custom  and  usage 
of  the  United  States  of  America  and  of  tlic  State  of  New  York,  and  of   the 
ship-owners,  shippers,  and  merchaats  of,  and  of   the  shippers  from  tiie   said 
United  States  of  America  and   State  of  New  York,  that  said  freight  so  paid 
,,i  advance  is  paid  uneoiulitionally,  and  not  subject  to  the  risk  of  the  voyage, 
and  is  not  repaid,  but  is  retained  by  the  ship-owner,  provitled  that  tlie  goods 
be  taken  on   board  and  the   voyage   commence   or   have   commenced."    The 
plaintiffs  demurred  to  this  answer;  the  demurrer  was  sustained,  and  on  appeal 
tiiis  ruling  was  sustained.     "Wliere   a  gen(!ral    rule  or   principle  of  law  like 
this,"  said  the  Supreme  Court,  "has  been  long  and  well  establislied,  it  cannot 
be  eoulroUcd  by  proof  of  any  usage  to  the  contrary.     Tliis  disposes  of   the 
defendants'  answer."     In  the  older  case  of  Frith  v.  Barker^  (1S07),  one  hun- 
dred and  ninety  hogsheads  of  sugar  had  been  shipped  at  S.  to  be  delivered  at 
N.;  but  during  the  voyage,  owing  to  a  leak  in  the  ship,  the  contents  of  fifty 
of  them  were  lust,  and  but  a  hundred  and  forty  were  received  by  the  consignee, 
who  refused  to  pay  frcdght  on  the  residue.     In  a  suit  for  the  freight  on  tlie  (ifty 
hopislieads,  the  plaintiff  offered  to  prove  that  by  tlie  usage  of  merchants  at  N., 
freiudit  was  payable  for  the  empty  casks,  under  the  circumstance  of  this  case. 
A  verdict  being  taken  by  consent  for  the  full  amount,  subject  to  the  opinion  of 
tlie  Supreme  Court,  it  was  tliere  held  that  the  i)laintiff  was  entitled  to  a  verdict 
for  only  one  hundred  and  forty  casks.     Kknt,  C.  J.,  who  delivered  the  opinion 
of  the  court,  after  stating  the  law  to  be  that  no  fri'i;4ht  is  due  for  goods  which  are 
destroyed  during  the  voyage,  said :  "  The  next  point  is  whetlier  evidence  of  usage 
in  coidradiclion  to  this  rule  was  admissible;  and  if  it  was,  wliether  the  usage 
proved  went  the  length  of  establishing  tliat  freiglit  was  in  this  case  due  for  the 
siij^ar  that  was  destroyed.     *     *     *     The  testimony  did  not  sliow  tliat  this  usage 


mm 


'  ^liiUlloloii  V.  Uayward,  2  Nott  &  M. '.». 
.\nil  sec  ilayward  v.  Middlctoii, ;!  MeCord, 
til. 

-  DctourhoR  r.  I'oel;,  il  .Jolnis.  210;  (iiles 
r.  The  C'yiitlii;i,  1  I'ot.  Adm.  t!07;  Gri;,'>f*  v. 
Austin,  n  I'lcU.  JO 

•■  Mi:iliin»  1'.  Warren  Ins.  (Jo.,  2  Allen,  Sii : 
ncniier  r.  K'lnitable,  etc.,  Ins.  ('o.,  C.  Allen, 
•."ii;  Cliii-e  r.  Alliance  Ins.  Co.,0  Allen,  :i!l; 
Miinlield  f.  Maitland,  4  llavn.  &  Aid.  r,^; 
I'Kiuaii  c.  Hooper,  3  Sunni.  (Ki;  Wuthon  v. 
biiykiiick,  ;i  .Johns.  337;  Mashiier  i-.  IJnllor, 


1  (amp.  Hi;  GHkhs  v.  Austin,  ,"}  IMck.  20; 
Phelps  )'.  Willi.unson,  5  Sandf.  HIS;  l.:iw.-on 
V.  Worms,  ■>  ( 'id.  3C.") ;  C'opo  v.  Dodd,  13  I'a.  St. 
33;  lirown  v.  Hams,  2  (jray,  X}9. 

<  1)0  Sdvalo  I'.  Kendall,  4  Mau.  A  Sel.  37; 
Jnekson  v.  Isaacs,  3  Hnrl.  A  N.  4o:);  IlieUs 
r.  Shield,  7  El.  A  Ul.  (I'.l;  Atwell  i'.  .MIIUt,  U 
Md.  34S;  Kinsman  v.  New  Voik  ln.s.  (  o.,  .'» 
Hosw.  400. 

•  1  Daly,  (03. 

>•  2  Johns.  327. 


il  ! 


r., 


i! 


fill  I 


238 


IN    DIFFERENT   RELATIONS   AND   OCCUPATIONS. 


Common  Carriers. 


n. 


1 


1  s 


existed  if  the  contents  of  the  casks  had  been  lost  by  the  moans  of  the  s(;i 
perils  during  the  course  of  the  voyage.  I  {)rosiiine  that  no  such  usajxc  exists. 
It,  wonld  be  repugnant  to  the  general  rule  of  the  maritime  law.  The  tniL 
import  of  the  testimony  off^jred  was,  tiiat  the  master  is  entitled  to  his  in-v^ii 
notwithstanding  the  ordinary  diminution  of  an  article,  arising  eitlier  from  iu 
nature  or  the  defect  of  the  cask.  It  becomes,  therefore,  immaterial  to  examine 
whotlier  this  evidence  of  usage  was  or  was  not  strictly  competent;  but  as  the 
question  is  frequently  suggested,  it  may  be  proper  to  observe  tluit  though  iisa,'r 
is  often  resorted  to  for  explanation  of  commercial  instruments,  it  never  is  or 
ought  to  bo  received  to  contradict  a  settled  rule  of  commercial  law." 

§99.  Povrer  of  Carrier  to  sell  Ooods  in  his  Charge.  —  Except  in  cases 
of  emergency  and  necessity,'  a  carrier  has  no  autliority  wliatever  to  .sell  th? 
goods  intrusted  to  his  care;  and  a  sale  by  him  witliout  express  authority  can 
pass  no  title,  even  to  a  purchaser  in  good  faith  and  for  a  fair  price,'  and  alth()ir,'h 
the  sale  may  have  been  for  the  purpose  of  realizing  his  nnpnid  chaiires.'  I3iit 
the  usage  of  the  trade  may  alter  this  rule,  and  rLMi(l(;r  such  sales  valid  to  proteet 
the  purchaser.'  In  a  Ma.s.sachusetts  case,  liowever,  where  a  master  of  asiniinled 
vessel  had  sold  the  goods,  instead  of  having  made  an  effort  to  carry  them  to 
another  port,  where  they  would  have  realized  a  mucli  better  price,  the  eourt 
ruled  that  the  sale  was  not  under  necessity,  was  tlieroforc;  void,  and  was  not 
helped  by  a  usage  for  the  master  of  a  stranded  vessel  to  sell  tlie  cargo  without 
necessity.  "  Necessity  only,"  .said  Putntam,  J.,  "  will  authorize  the  sale.  A 
usage  to  sell  without  necessity  would  be  void."* 

§  100.  The  Carrier's  Lien  as  affected  by  Usage.  — Tlie  carrier  has  at  connmiD 
law,  as  security  for  compensation  for  his  labors  and  for  any  ad"ances  which 
he  may  have  made  for  the  benefit  of  the  goods  in  his  cluirge,  a  lien  upon  siicli 
goods;  that  is,  a  right  to  retain  possession  of  thoni  until  his  charges  have  bn"! 
paid  or  tendered.  Tliis  lien,  however,  extends  only  to  charges  and  adviuno 
upon  the  particular  goods  upon  which  it  is  claimed,  and  is  called  a  partieiil  ci 
lien,  for  the  law  docs  not  allow  Inm  a  general  lien  for  any  l)ahim;e  which  iiiiiy  I"' 
due  to  him  from  the  owner  on  other  a<;(!ounts  or  transactions  between  theni.» 
The  courts  have  been  said  to  guard  jealously  the  limits  of  this  rule,  and  to 
refuse  to  allow  an  ext(!nsion  of  it.'  Tlierefore,  while  peruiittinii  the  eanier  to 
avail  himself  of  a  general  lien  by  an  express  contract,  tli(>y  liave  refused  to 
allow  Iiim  its  advantages  from  a  simple  notice  from  liim  to  his  customers  that 


E'      «> 


>  Xutara  v.  Henderson,  L.  K.  6  Q.  B.  'M6; 
Artliui-  V.  Tlio  Cussiusi,  '2  Story,  81 ;  Pope  v. 
Nickcrson,  .T  Story,  40,');  Post  v.  Jones,  19 
How.  1.50;  The  Giatituiilne.lJ  Rob.  Adin.  '240; 
The  Veloria,  3  Ware,  139;  The  Mohawk,  8 
Wall.  153. 

2  Lickbarrow  v.  Mason,  6  Knst,  21;  White 
V.  Webb,  15  Uonn.  ;i(W;  McConibio  v.  Duvio.s, 
6  Kast,  5M;  Agncw  «.  Johnston,  22  Pa.  SI. 
471;  Powell  «.  Buek,  4  Strobh.  42";  Swift 
V.  Moseley,  10  Vt.  2aS;  Lecky  v.  McDerniolt, 
8  Serg.  A  U.  500;  Kitcliell  v.  Vanailar,  I 
Blackf.  36Ui  Uouue  v.  KusBell,  3  Oiiay,  :>82; 


Hoflfinan  i>.  Noble,  (i  Melc.68;  Bailey  v.  hlnw, 
24  N.  11.297. 

•'  Wcslet-n  Transp.  Oo.  v.  I?arbor,  5i;  N.  1, 
6i4;  llnnt  v.  Haskell,  'J4  Me.  :i;!'.s  IiiiiiaiMi  ■! 
lis,  etc.,  K.  Co.  V.  Heindon,  81  IM.  U;!. 

<  Taylor  v.  Wells,  :'<  Walts,  (;>;  Kapi'  i-. 
Paliiiei,  ;j  Watts,  178;  I'ielseruig  f.  liUfk,  l.'i 
Easl,  44;  Bryant  i'.  Conuiiereial  Ins.  Co., b 
Pick.  131;  Kemp  v.  CouglUiy,  11  J"iiii8.  lo;. 

6  Bryantr.Commerciallns.  Co.,()I'ick.  131. 

•  nuBhforth  V.  Hndfleld.O  Ka^•t,0•.'J;  Harts- 
home  V.  Johnston,  2  Halsl.  lOS. 

'  Ang.onCar.,$367;  Hutch,  on  <";u.,5<'' 


niiii!il 


COMMON    CARKIEKS. 


239 


Usaiif  as  to  Liens. 


he  will  transport  their  fjoods  only  on  that  condition.'    Yet  before   usage  the 
courts  have  fjivcn  way,  and  ix-rinittcd  lliis  "  encroachment  upon  the  common 
law"  to  flourish,  thonj^li  they  did  not  recede  without  a  strusj^le.     In  Rushforth 
V.  Uadfidd,'  wliich  arose  in  the  Kinv:'s  Hench  in  180."),  at  tlie  trial  before  Gkaham, 
B.,  of  an  fiction  of  trover,  the  defendant's  counsel  offered  evidence  to  show  that 
by  tin-  usaije  of  the  trade  throughout  the  realm,  common  carriers  had  a  right  to 
rctJiin  particular  goods  belonging  to  a  party  (or  their  general  balance,  due  from 
the  siune  party  for  the  carriage  of  other  goods  belonging  to  him.     A  number  of 
witnesses  were  calUul  to  ])r<)ve  tht^  usage,  among  tlicin  the  defendant's  l)ook- 
kecpcr,  who  testltied  to  two  instanct's  in  twenty  years.     l<"ive  other  carriers  were 
introduced,  who  remembered  a  number  of  cases  in  whicii  tliey  had  held  goods 
for  a  general  balance  till  it  was  paid.     Tlie  plaintiffs  insisied  that  the  evidence 
did  not  show  a  general  u>:ige,  but  Gkaham,  IJ.,  Ihoiiglii  that,  lieing  uncontra- 
dicted, it  admitted  of  that  coiK  hision,  ;ind  directed  the  jury  tliai   it  they  found 
that  sucli  was  the  general,  undi-puted   usage,  it   establislu-d  the   riglit  of  the 
carriers.    The  jury  found  for  tlie  defendants,  but  on  application  to  the  KingVs 
Bench  a  rule  absi)lnt<'  was  granted  for  a  new  trial.     All  the   judires  thought  the 
verdict  ought  not  to  stand.     Lord  ELLicNnououGU,  C.  J.,  said:   "There  was  no 
sullicient  evidence  on  which  the  jury  coulu  lind  any  such  general  usage  as  would 
warnint  tlie  conclusion  of  an  agreement  between  the  parlies  to  adopt  it.     The 
lien  claimed  by  the  carriers  for  their  general  balance  is  not  founded  in  thi?  com- 
mon law;  for  by  the  custom  of  the  realm  a  common  carrier  is  Itound  to  carry 
tiio  goods  of  the  subject  for  n  reasonable  reward,  to  be  therefore  paid,  by  force  of 
which  he  has  a  lien  only  for  I  lie  carriage  price  of  the  particular  goods.     Then, 
what  proof  is  there  of  any  further  li(!n  by  usage?    I  will  not  say  that  there  may 
not  be  sufficient  evidence  of  such  a  general  usage  for  the  carrier  to  let  out  of  his 
hands  the  particular  parcel  on  whic'i   his  (lommon-law  lien  attaches,  without 
irciiving  the  carriage  price  of  it  at  the  lime,  upon  a  g<;ueral  agreement,  of  whii  h 
such  usage  would  be  evidence,  that  lie  may  retain  any  parcel   IxMonging  to  the 
same  parly  for  the  whole  of  his  deuiaud;  but  such  a  general  usage  ought  to  be 
proved  by  stronger  evidence  than   was  offered   in    this  case,   especially  as  it 
trenches  up  )ii  the  common-law  riglit  of  I  lie  subject.     But  if  there  be  a  general 
usage  of  trade  to  <leal  with  common  i;;nriers  in  this  way,  all  persons  dealinir  in 
the  liade  are  supposed  to  contract  with  them  upon  the  footing  of  the  general 
luiKtice,  adopting  the  general  lien  into  their  particular  contract.    The  case, 
however,  does  not  appear  to  have  gone  to  the  jury  in  this  view  of  it.    There 
had  been  iirevious  dealing  between  lliese  parties,  and   tiicre  might  have  been 
evidence  to  show,  if   siudi  hatl  bec;n   really  the    case,  that  it   was   understood 
between  them  that  the  carriers  were  to  have  a  lien  on  any  parcel  of  goods  in 
their  hands  for    the   carriage   price   of   those   whicli    had   been  antecedently 
dtlivei'cd;  but  that  was  not   resorted  to,  but  it  was  left  to  the  jury  as  a  case 
turning  on  the  general  usage  of  carriers  throughout  the  realm  to  have  u  lien  for 
their  general  balance,  without  any  sullicient  evidence  before  them  to  warrant 
theni  in  drawing  .so  extensive  a  conclusion.     The  oldest  instance  which  conld  be 
particularized  was  not  above;  live  years  ago;  and  but  one  mstauce,  aud  that  oidy 


'  McFailaiul  v.  Wheeler,  '.'(1  Wciul.  4«7; 
Kirkman  r.  Sliawe.io.s.--,  (>  '\\'\\\\  Ke)).  14; 
WriKlii  r.  Siiell, .')  Burn,  &  .\ld.  .tto. 


»  (i  EuHl,  523. 


\  'I 


1 


240 


I\    DIFFEKKNT    RELATIONS    AND   OCCUl'ATl  »\: 


Common  Carrier; 


;: 


m.     ,  HI 


4 


two  years  ago,  of  the  exorcise  of  the  chiim  to  any  considerable  amount,  so  us  lo 
make  it  worth  while  to  resist  it.    To  justify,  however,  so  extensive  a  claim  upon 
the  i^round  of  {general   usage,  there   oujjlit   to  be  evidence  of  insiaiicus  more 
ancient,  more  numerous,  and  more  important."     Guosic,  J.:  "I  should  object 
to  making  a  precedent  in  a  case  of  this  sort,  where  a  general  conclusion  is  to  be 
drawn  from  such  insulHcicnt  premises.    A  carrier  may  have  a  lien  either  lu  com- 
mon law  for  the  carriage  of    the   particular  goods,    upon  which  there  is  no 
question,  or  it  may  arise  out  of  the  usage  of  trade,  or  by  a  particiilai'  loutnict 
between  the  parties  concerned.     If  it  could  be  claimed  by  the  gciienii  usa^'ti  of 
trade,  I  should  rather  have  thought  that  it  should  have  been  coeval  with  the 
common-law  liability  of  the  carrier;  but,  at  any  rate,  there  was  no  evidunci'  here 
sufficient  to  warrant  the  jury  in  tlnding  any  such  general  usage  in  trade.    Ami 
as  to  any  lien  in  respect  of  a  particular  contract,  it  was  not  left  to  tiic  jun  or 
that  ground."     Lawkknce,  J.:  "I  agree  that  there  ought  to  be  a  luu  trial. 
Common  carriers  are  every  day  attempting  to  alter  the  situation  in  wliicli  tlay 
have  been  placed  by  the  law.     At  common  law  they  are  bound  to  receive  iind 
carry  the  goods  of  a  subject  for  a  reasonable  reward,  to  take  due  care  of  them 
in  their  passage,  and  to  deliver  them  in  the  sanK;  condition  as  wluii  they  were 
received;  but  they  are  not  bound  to  deliver  them  without  being  i)aicl  for  the 
carriage  of  the  particular  article,  and  therefore  they  have  a  lien  to  tlial  i-xtciit. 
Of  late  years,  however,  they  have  been  continually  attempting  to  alter  their 
general  character,  by  special  notic(!s  on  the  one  hand  to  diminish  tlieir  liability, 
and  on  the  other  hand  by  extending  th(;ir  lien.     But  what  evidence  have  we  in 
this  case  to  say  tiiat  their  common-law  situation  is  altered?    To  do  tliat,  it  must 
be  shown  tliat  both  parties  have  consi'uted  to  the  alteration ;  the  carrier  cannot 
alter  his  situation  by  his  own  act  alone.     It  is  said  that  a  general  lien  is  canvin- 
ient  to  the  parties  concerned.     I  do  not  say  that  it  may  not  be  so,  imt,  it  must 
arise  out  of  the  contract  of  the  parlies.     It  may  be  convenient  itioiiLili  for  tlie 
customer  to  say  that  in  consideration  tliat  you — the  carrier  —  will  give  tip  your 
right  to  stop  eacli  particular  parcel  of  goods  for  the  price  of  tiu?  carria^v,  I  wii; 
agree  that  you  may  stop  any  one  parcel  of  my  goods  for  the  carriage  i)ri(e  of  all 
together.     But  still  this  must  be  by  contract  between  them;  and  usage  of  trade 
is  evidence  of  such  a  contract.     And  where  such  a  usage  is  general,  and  has 
been  long  establislied,  so  as  to  afford  a  presumption  of  its  being  commonly 
known,  it  is  fair  to  conclude  that  the  particiil:ir  parties  contracted  with  reference 
to  it.    Then,  if  in  this  case  there  had  been  evidence  of  a  usage  so  uniform  and 
frequent  as  to  warrant  an  inference  that  the  jiarties  contracted  witli  reference  to 
it,  it  should  have  been  left  to  the  jury  to  infer  that  it  was  part  of  their  contract." 
Ja:  Bi.ANC,  J.:  "I  doubt  whether  the  jury  had  this  case  presented  to  ihein  in 
the  triie  light  in  which,  by  law,  it  should  have  been,  for  it  was  left  to  tlieni  to 
■.;l  for  the  dofeniiants  upon  the  bare  ground  of  there  being  evidence  of  a  general 
...-.    1.  ;;riioni;st  carriers  to  retain  for  their  general  balance;  but  no  ^;'^a•J;e  of  car- 
f',       ,v.>'ild  be  sudlcient  to  bind  other  parties,  unless  it  were  so  gemral  as  to 
'•  •'•  ■<:.  m  inference  that  the  party  who  dealt  with  a  carrier  had  knowledge  of  it, 
ro  warrant  a  conclusion  that  he  contracted  with  a  carrier  on  that  irro  ind. 
General  liens  are  a  great  inconvenience   to  the  generality  of  traders,  because 
they  give  a  particular  advantage  to  certain  individuals  who  claim  to  themselves 
a  special  privilege  against  the  body  at  large  of  the  creditors,  instead  of  coming 


ia  .. 


COMMON  cai:kiku>. 


241 


Usam'  as  to  Liens. 


ill  with  them  for  an  equal  share  of  the  hisolveiit's  estate.  All  tiiese  general  liens 
iiifriiiire  upon  the  system  of  the  bankrupt  laws,  the  object  of  which  is  to  dis- 
tribute the  debtor's  estate  proportionately  ainoujist  all  the  creditors,  and  they 
<iii:;lit  not  to  be  eucoura'Jted.  But  I  do  not  mean  to  say  that  a  usaaje  in  trade  may 
not  i)e  so  general  and  well  established  as  to  induce  a  jury  to  believe  that  the 
jKUties  acted  upon  it  in  their  particular  agreement;  and  1  cannot  say  that  such 
;iii  iiL'reement  would  not  be  y;ood  in  law,  althoujih  a  carrier  misijiit  have  no  right 
;.)  refuse  carrying  goods  for  another  without  an  agreement  that  he  should  liave 
I  lien  for  his  general  balance,  for  that  would  be  contrary  to  the  obligation  wliich 
the  hivv  has  imposed  on  him.  The  instances  of  detainer  by  (virriers  for  the 
UMieral  balance  which  were  pro\ed  at  the  Iriiil  were  very  few  and  recent,  with 
;i  view  to  found  so  extensive  a  claim;  and  the  instance  where  goods  of  the  value 
(if  t;iO,(iOO  were  detained  for  £i;!0  does  not  appear  to  me  to  assist  the  claim, 
for  tile  parties  would  naturally  rather  pay  £i;i()  —  the  amount  of  the  bahmce  due 
to  the  carrier — than  have  goods  of  su(!li  great  value  dc^tained  from  them  till 
111!'  (|uestions  were  decided  at  law.  Without  saying,  therefore,  that  there  may 
not  be  such  a  usage  as  that  insisted  on,  1  am  clearly  of  opinion  that  there  should 
he  ;i  new  trial,  in  order  to  have  the  case  submitted  to  the  jury  on  its  true  ground, 
uiiieli  it  does  not  appear  to  have  been  upon  the  last  trial."  On  a  second  trial, 
till'  jury  found  a  verdict  for  the  ))laintiffs,  and  a  rule  being  obtained  to  set 
ii  ;i>i(le,  was  discharged.'  Hut  twenty-two  years  later,  in  JlDldcrncsa  v.  Colliv- 
•nn,-  the  same  court  said:  "  Where  the  usage  is  general,  and  prevails  to  such  an 
i\tfui  that  a  party  contracting  must  be  sup|)osed  to  be  conversant  of  it,  then  he 
will  be  bound  by  the  terms  of  that  usage;"  and  it  may  now  be  considered  as 
-(•tiled  that  carriers  may,  by  the  long-established  and  well-known  usages  of 
pariieiilar  localities,  or  of  particular  classes  of  those  engaged  in  that  business, 
Ijci'oiiie  entitled  to  retain  the  goods  which  come  into  their  custody,  for  general 
li:il;mces.' 

Still  another  fundamental  rule  as  to  the  carrier's  lien  may  be  altered  by 
custom  and  usage.  It  is  a  giMieral  rule  that  credit  given  by  a  carrier  to  the 
cinployer  for  the  price  of  the  transi)ortati'/r>.,  l)ey()nd  tiie  time  when  the  goods 
transported  are  to  be  delivered  by  the  cir'ier,  is  inconsistent  with,  and  will 
ilclVat  the  li(>n."  \\\  llnitt  v.  J/Z/c/trZ/,-' the  defendants  claimed  a  lien  for  repairs 
on  the  plaintiff's  ship,  'riicre  was  no  agreement,  as  to  when  the  I'epairs  were  to 
lie  p;iii|  for,  and  eonsefpiently  the  defendants'  rigiit  seeiiKnl  to  be  clear.  Hut 
t'l.c  I'laiiitiff  having  prov(!d  that,  by  the  usage  of  the  trade,  wliere  there  was  no 
express  contract  as  to  the  time  of  payment,  tlu;  ship-owner  giv(\s  credit  for 
I'lKiirs,  Lord  Ei.i.K\B()i{(»r(;ii  ordered  a  verdict  in  his  favor,  saying:  "I  am 
'Md|iiuion  that  in  this  case  the  defendants  had  no  right  to  dc^tain  the  plaintiff's 
''hip.  It  is  distinctly  proved  that  where  there  is  no  express  stipulation  for  a 
I'iUh-money  payment,  credit  is  invariably  given  by  shii)wrights  in  ttu;  river 
Tliiniies.  The  period  of  credit  varitis  in  the  different  trades  in  which  ships  are 
t'liipl'iyed ;  but  in  each  trade  it  appears  to  be  uniform,  and  for  the  repairs  of 


£ 


m 


i ,  ,' 


7  Kast,  '^24. 

T  ImU-ii.   it  (;i-ess.  212.    See   also    IJex    r. 
Iliii(i|.lncy,  1  Mi'Cl.  &  Y.  101. 
Ilmch.  on  Car.,  §  \". 
I'iiuiuy   I'.  Wells,  10  Conn.  104 ;  l!aitl,  v. 


.Milcliell,  4  Camp.  145;  Cowcll  v.  Simpson,  16 
Ves.  275;  Cliandler  v.  Itcldeii,  18  Johnti.  157; 
Lncuis  I'.  NoRkclls,  4  ItinK.  IW. 
4  (':iiii|i.  145. 


Ill 


V:     1 

1*,'      ™ 

ili 

:«. 


242 


IN    DIFFEKKNT    RKLATION8   AND   OCCUPATIONS. 


Common  f^arriers. 


Indiiuncn  wi  .irc  told  it  is  eiKhtcon  months,  ax  tlu;  expiration  of  wliirh  tinn'  it 
is  expected  they  sliiil I  have  returned  from  tlieir  voyajjes  and  put  fiin(l<  into  ijn 
hiinds  of  tlieir  owners  by  the  freight  they  liave  earned,  '['his  l)ein^  Uie  in  ;iii. 
able  nsaLif,  i  nnist  consider  it  as  tlie  basis  of  tlie  contract  between  tliesij  parties; 
and  their  respective  rii^iits  and  liabilities  are  precisely  the  same  as  if,  witlioiit 
any  usage,  they  had  (Altered  into  a  special  agreement  to  the  lilvo  effect.  In  tli;ii 
case  it  se<;Mis  to  be  admitted  that  no  lieu  could  be  claimed.  To  be  sure,  a  lii'ii  is 
wholly  in<;onsistent  with  a  dealing  on  credit,  and  can  only  subsist  wIktv  pny- 
mcnt  is  to  be  made  in  ready  money,  or  there  is  a  Ijargain  that  security  >ii;ill  be 
given  the  moment  the  worlc  is  completed.  I  do  not  say  that  a  shipwiiijlit  lias 
not  a  lien  on  a  ship  in  his  dock,  where  he  is  to  be  paid  in  ready  luom  y  as  sodh 
as  the  repairs  are  linislied.  On  the  contrary,  I  am  inclined  to  think  tiiai  In  lias 
a  lien,  like  other  artilicers.  But  there  can  be  no  lieu  witliout  an  imiiiidiaie 
right  of  action  for  the  debt,  and  that  does  not  accrue  till  the  period  of  crriiit 
has  expired."  So,  in  a  later  case,  where  goods  were  landed  upon  a  wii.ui  in 
October,  and  by  usage  the  wharfage  was  not  paid  until  Christmas,  it  w:i>  In  kl 
that  there  could  be  no  lien.'  It  has  been  held  in  tlie  Supreme  Court  of  liie 
United  States  that  a  frequent  and  general,  but  not  universal  practice  in  a  par- 
ticular port,  on  the  part  of  ship-owners,  to  allow  goods  brouglit  on  their  \i'»iis 
to  be  transported  to  the  warehousi  of  the  consignee  and  there  iuspci.ti'd  l,(|nic 
freight  is  paid,  is  not  such  a  custom  as  will  displace  the  right  of  ilu  vanu r  tu 
demand  freight  on  the  delivery  of  goods  on  the  wliarf.- 

§  101.  Bills  of  Lading  and  restrictive  Contracts.  —  Where  the  terin>  oi  a  bill 
of  lading  or  other  similar  contract  l:;ive  accpiired  by  usage  a  particular  nicuiiini.', 
the  parties  will  be  jjresunied  to  have  u.sed  tliem  in  that  sense. '  But  the  u>agi'  must 
be  uniform;  and,  t!  erefort;,  if  carriers  on  a  particultir  river  sometimes  giv  nills 
of  lading  containing  an  exemption  from  los^  by  lire,  and  at  other  time-  coutaiii- 
ing  no  such  exemption,  such  a  usage  is  not  established,  because  not  imiforiii ;  ami 
this,  altlvough  in  a  majority  of  cases  ihe  exception  was  contained  in  tin  liilN  »{ 
lading.^  It  has  been  expressly  ruled  in  several  cases  that  tlic  common-law  lia- 
bility of  a  carrier  cannot  be  restricted  by  anything  less  than  a  contract,  and  thai. 
a  usage  on  the  part  of  tlie  carrier  not  to  receive  goods  on  any  other  tenn-  than 
on  those  of  a  limited  lial)ility  cannot  be  invoked  for  his  protection  in  any  la^c. 
Thus,  a  usage  not  to  ]w  litible  for  accidental  losses  by  tire,**  and  not  to  acicpt 
looking-glasses  for  *ransportation  without  exemption  from  breakage,'  liavr  'Mcn 
held  inadinissiblf.  So,  the  sending  of  goods  under  a  restrictive  coutiMi  t  in  any 
number  of  insUnn  <  ^  does  not  bind  the  party  sending  them  to  a  similar  contiact 
in  the  future,  without  his  agreem'.uL  to  that  ttffecl; "  though  upon  tlii>  iioin'  it  is 


'  Craw.'<hay  r.  Homfray,  4  Harn.  &  Aid.  50. 

-  The  Kddy,  f)  Wall.  481. 

'  Wayne  i-.Tlie  <icni  rat  i'ike,  16  Ohio,421; 
Rawson  r.  Holland,  5!i  -N.  \.  <>ll. 

<  (Jooper  V.  ISerry,  '21  Ga.  .'lit);  ISerry  v. 
('oopcr,  28  (ia.  .54^. 

■'  IllinoiH,  etc.,  H.  Co.  p.  .Smy.ser,  :{8  111.  3.54; 
The  Pacific,  1  Dcndy,  71 ;  Odxo  r.  IlcisUv  ,  1!) 
I'a.  SI.  UA;  (;lyd(!  /■.  (;raviM  .->»  I'a.  St.  r>l ; 
(Jarey  v.  Moatjliev,  ;t:{   Ala.  (ilM;  Evaiisville, 


etc.,  R.  Co  V.  Young,  -28  Inti.  ali::  I'iiIIlmI 
States  Kxpre.ss  Co.  r.  Rush,  21  liul.  H';.  I'at- 
ton  V.  Magrath,  liudU-;.  (S.  C.)  I.V':  I  nro  c. 
Ofrutt,21  La.  .Vn.CT't;  CranwcU  r.  Tli-'  liimiy 
Fosdic.k,  15  La.  .\,..  i;t(i. 

"  Illinois,  etc.,  R.  Co.  v.  SinyBev,  '.s  111.  XA. 

'  The  I'acillc,  1  Dcady,  71. 

>^  McMillan  v.  Miohifjui,  etc.,  U.  ».'".,  »> 
Midi.  7!);  Kric,  etc.,  Transp.  Co.  »'.  l»aIiT,  8 
Cent.  L.  J.  2!«. 


!}  102.  Statutory  Exemptions  cannot  be  waived  by  Usage.  —  The  Uiiitod 
Stai'^  stiilute  of  Miircli  ;!,  IHol,  oxeinptitifi  the  (jwiiors  of  vcssols,  in  ciist;  of  loss 
liy  I'.!!',  from  liahility  for  tlio  iioirlijrencs  if  their  olllcers  or  aj^euts  in  which  the 
owners  have  not  directly  participated,  provides  that  nothing  in  the  act  "sliall 
prevent  the  parties  from  uiakin!"'  snch  contract  as  they  please,  extendinir  or  lim- 
itiii;:  the  liability  of  snch  owner."  It  has  been  held  by  the  Snprenie  Conrt  of  the 
United  States  that  the  contract  mentioned  in  the  proviso  must  be  one  which 
sluiws  upon  its  fare  that  it  is  so  intended,  and  not  one  which  may  be  construefl 
by  custom  to  so  intend.* 

III.  Corporations. 

§  103.  The  Ancient  Doctrines  concerning  Corporate  Capacity  and  Assent 
as  affected  by  Usage. —  It  was  an  ancient  doctrine  of  the  common  law  that  cor- 
|)onuions  could  express  tlieir  assent  only  by  means  of  their  .seal,  and  they  were 
therefore  consiihTed  incapalile  of  making  contracts,  or  of  appointiuir  agents  or 
iittorneys  to  do  .my  binding  acts,  except  by  a  deed  or  power  in  writing  under 
ilii'ir  corporate  .seal.''  This  doctrine  is  now  obsolete,  but  it  owes  its  extinction 
not  to  the  courts,  but  to  the  practices  of  tlie  corporations  themselxes,  whose 
iisiincs  ttie  judges  wen;  compelled  to  follow.  "  However  well  established  this 
may  have  been  as  a  I'ule  of  the  courts,  its  extriMui;  inconvenience  must  always 
have  effectually  diMiied  it  currency  as  a  rule  of  practice.  It  can  hardly  be 
bclieveil  that  in  their  daily  commerce,  for  the  necessaries  and  elegancies  of  life: 
for  the  decoration  of  liieir  chajiels  and  churches;  for  the  building  and  repairing 
of  tlieir  liouse*;,  and  the  tillage  and  improvement  of  their  lands,  the  various 
religious  connnnnities,  anciently  so  numerous  and  so  wel'.  endowed  in  England? 
coiitraeted  onlv  by  deed.  f)f  necessity,  their  superior  and  authorized  agents 
llMl^^  iiiiv'j  bought  and  so  '.   l)argained  and  contracted  for  them  without  the 


COKPOKATIONS. 


24a 


Capacity  and  Assent. 


rciniirkcd  by  the  Supreme  Judicial  Court  of  Massachuseits:  "We  do  not  meiin 
to  be  understood  as  saying  tliat  such  ass(!nt  and  acquiescence  may  not  be  shown 
by  evidence  drawn  from  a  long  and  uniform  coia-e  of  dealing  iu-tween  the 
piirties,  in  connection  with  other  circuinstances  leading  to  tlie  inference  that  ii 
notice  of  a  restricted  liability  on  the  part  of  the  carrier  was  recognized  by  the 
ether  party  as  constituting  the  agreement  on  which  the  contract  of  carriage  was 
u>  be  performed.  But  such  dealing  and  recognition  must  be  tantamount  to  a 
clear  assent  to  the  terms  of  the  notice  on  the  part  of  the  owner  and  eousiguoi , 
or  it  will  fall  short  of  establi-hing  a  limitation  on  the  cf)nnnon-law  iiai)ility  of 
the  carrier."'  And,  thongh  contrary  to  an  Illinois  case  already  referred  to,-  it 
has  been  ruled  in  New  York  tiiat  wliiie  a  carrier  cannot  vary  the  lial)iiity  wliich 
attaches  upon  the  receipt,  of  goods  for  transportation  witliout  (lualitlcation.  by 
tlie  delivery  of  a  subsequent  bill  of  bidir'g  containing  conditions,  yet  this 
Tile  will  be  diffe"<  ut  if  tlie  parties  have  been  in  the  habit  of  transacting  tlieir 
iiiisiness  in  that  way.' 


'  .i!i 


1  I'errv  i-.  Thompson,  9S  Ma<s.  IV.K 

■  Hi  1  ..i.s,  t'le.,  I{.  Co.  ('.  Smy.ser, :«  111.  :m. 

'■'  Sht'llon  r.  Mnrehants*  Despatch  Trnnsp. 

<"'"..  :!il  N.  Y.  S.  (.'.  (.J.  A  S.)  .V.'T. 

'A'alkur  V.  IViiiii-poitatioii   'v.,  .'>  Wall. 
1.5u. 


'  f!ase  of  the  Dean  of  Kernes,  Davies,  121  ; 
.Maiih.v  f.  Long,  :J  Lev.  107;  Horn  c.  Ivy.  I 
Vent.  47;  Uailiff-s,  etc.,  of  Ipwwjdi  r.  Martin, 
i!ro.  Jac.  411 ;  Arnold  c.  Mayor,  1  .M;in.  &  ii. 
S',):5;  Taylor  v.  Uulwich  Hospital,  1  J'.  Wins. 
U65. 


'I   \i 


244 


IN    DIFKKRKNT    UKLATION8    AND    OCCUPATIONS. 


CorporatiOHH. 


5 


(Iclayiiif!;  iiircirvont'um  i»l'  scaled  iiislriimcnts.  Municipal  corporations,  too, 
wliose  barj^iiins  and  piircliascs  must  liavo  been  mimcrnis  in  tlic  most,  aii'  i.  nl 
fiincs  for  llic  iinprovcniciit  and  dcfcMicc  of  tlicir  towns,  for  articles  of  civic  ]»iin|) 
and  display,  can  hardly  be  supposed  to  liave  contracted  for  tlicm  in  all  tluir 
details  by  deed."  '  IIow,  little  by  little,  the  strictness  of  the  old  rule  was  lirokcn 
in  npoM  by  permitting;  at  first  matters  of  small  momc'Ut,  and  at  leii^itli  tiaii-ac 
tions  of  more  importance,  to  be  le^al  and  valid,  wit!iou,t  the  formality  <■  a  ilicij, 
may  be  traced  by  the  student  who  has  leisure  to  examine  the  old  cases;  but 
to-day  tliey  are  of  value  only  as  history. '^  No  sudi  tecliuieal  rule  has  liaiiipcrcil 
in  this  country  the  business  relations  of  individuals  witli  corporations,  since  ii 
was  laid  down  in  the;  leadinir  case  of  Bank  of  Colnmhin  v.  J^attrrson,^  by  the 
Supreme  Court  of  the  United  States,  that  wherever  a  corporation  is  acting  within 
the  scope  of  the  lejiitimate  purposes  of  its  institution,  all  parol  contracts  inadc 
by  its  authorized  agents  are  express  promises  of  the  corporation,  and  all  diitic-. 
imposed  on  them  by  law,  and  all  benefits  conferred  at  tlieir  reciue-i,  raise  iuipMcl 
l>romises,  for  the  enforcement  of  which  an  action  will  lie.  Accionliuulv,  a  coi-- 
poration  may  be  bound  by  the  acts  of  its  agents  although  not,  under  its  co  jxi- 
rate  seal,  and  even  whore  they  are  not  reduced  to  writing,  except  in  those  (•:isi's 
where,  by  the;  provisions  of  tlie  Statute  of  Frauds  or  otherwise,  a  contr.icl  must 
be  in  writing  to  render  it  valid,  if  made  by  a  private  person.* 


"  ^    *   i 


§  104.  Offlcera  and  Agrents  of  Corporations.  —  Although,  as  has  been  ssiiil, 
according  to  tlie  ideal  of  a  corporation,  every  act  must  be  done  by  tliose  uio 
ri'prescnt  it,  yet  many  of  its  oflicers  may  do  many  things  to  bind  the  company, 
in  tlie  line  of  their  duties  and  sanctioned  by  usage;  otherwise,  tliere  would  be  no 
sucli  thing  as  getting  on  with  business.*     The  powers  and  acts  of  agents  ai.d 


I  Anp.  .t  Ames  on  ("Jorp.,  §  22S. 

-  MaxwcH  V.  Dtihvicli  Hosiiilal,  4  I^.  J. 
(C'li.)  lol;  Hinilh  v.  UirniiiiKliani  (Ja.s  I.ijtiil 
(;i>.,;{  Nev.  &  M.  771;  .Mayor  of  'riietfont'.s 
Case,  1  Salk.  191 ; ,'!  Salk.  10;i;  Arnolil  r.  Mayor 
of  Toole,  4  Man.  &  (i.  S03;  Itex  r.  IJisp;,  '.  P. 
Wnis.  410;  Yarboroiisli  v.  Mank  of  Kiij^land, 
Ifi  Kasl,  (i;  Kast  London  Water- Works  r. 
ItaiU'V,  4  ISiiig.  '2S:;;  K'lwards  r.  CJrand  ./unc- 
tion Oanal  Co.,  1  .Mj'  &  Vr.  C")!);  .Smith  v. 
CarlwriglU,!')  Kx(',li.!)'J7;  Murray  r.  lOaslIiidia 
iUh,  .'■>  IJani.  ft  Aid.  '20t  :  London.  I'lc,  K.  Co. 
r.  WiiUcr,  I  Cr.  *  I'll.  ■>7 ;  Doc  r.  Hold,  11  Q. 
i;.  12!);  Harper  r.  (  barleswortli,  4  Barn.  & 
Cress.  575. 

'  7  (Jranc.li,  'JllSt. 

''  American  lu.s.  Co.  v.  Oakley,  0  Paige, 
4%;  Hamilton  r.  Lyc.innnig  Ins.  (^o.,  5  Pa.  St. 
:>44;  Coiiro  v.  Port  Henry  Iron  Co.,  I'l  IJarb. 
.'»:!:  IJank  of  the  United  States  v.  Norwood,  1 
Har.  &  J.  4'2(i;  Fleckner  v.  United  .States 
I'.ank,  H  Wheal.  ;t.'>7;  CKsborn  r.  United  .siate.s 
Hank, 9  Wheat.  7SS;  Union  Man.  Co.  i'.  Pitkin, 
14  (7onn  174;  Bank  of  the  U'niled  States  v. 
l»u»dridge,  12  Wheal.  *»;  Everett  v.  United 


States,  (i  Port.  182;  Savings  Hank  v.  IVivii,  S 
Conn.  21)2;  I>nnn  r.  I'cclor  of  .St.  .Xmlrcw's 
Church,  14  Johns.   Xlfi;  Over.-eer.'*   r.  over 
seers,;}  Serg.  &  U.  117;  Palm  r.  Meilnia  iu.^. 
Co.,  20  Ohio,  ."ji!? ;   Sau  Anlonn)  i .  loiii-,  !* 
Texas,  G!);  Kastm.an  r.  C;oos  I'.ank,  1  \.  II.  A: 
ISales  V.  Hank  of  Alab.im;',,  2  Ala. -(.v:.  ^lu-l 
don  »'.  Fairfax,  21  Vt.  102;  l.egrand  ;•.  ll:nn|i 
den  College,  5  .Munf.  :',21 ;  Wiiile  c.  We-ljiort 
(Jolton  iilan.  (Jo.,  1  Pick.  21,');  (iarvey  r.  Col 
eoi'k,  1  Noll  &  M.  2:!1;    Pelrie  r.  Wriu'lil,  li 
Smed.  &  M.  G47;  Haitlist  Church  r.  .Mulfonl.:! 
Ilalst.  1S2;  Hnueombe  Tnrn|iikc  Co.r.  Mc(':ii- 
son,  I    I)ev.  &  H.  ;{10;   Abbot  v.  Hernuni,  7 
Greenl.  US;  Waller  r.  Hank  of  Keulurk},:! 
.L  .L  Marsh.  201;  Lee  r.  Triislces  of  Hem 
ingsl)nrg.  7  D.'ina,  2S;   ComineniMl   l!:nili    . 
Ne\vi)()rt  Man.  (.o.,  1  II.  Mod.  1»:  Danfuitli  »'. 
Schoharie  Turnpike  t:o.,  12  .Johns.  2;i0.     ('"n 
tra,  Frankfort  Uank    v.  Anderson,  :1   A.  h. 
Marsh.  !)32. 

•'  (.'hanibersburg  In.-.  Co.  c.  Snnlli,  II  Pa- 
st. 120;  I'lr.-l  .N'ationai  Hank  r.  Hoj;aii,47  .M"- 
472;  Fayles  v.  National  Ins.  Co.,  4!)  Mo  :au. 


COKl'OKATIONS. 


245 


Usag«!  as  to  Coiitmcls. 


otliccrs  of  corporations  aciiuircd  by  usiigo  and  reiulorod  valid  hy  custom  arc  dis- 
cussed in  anotiuii'  place.' 

§  105.  Contracts  not  accordinjf  to  Mode  prescribed  -Usage.  -  Where  the 
cliarter  of  a  corporation  pniscrilies  the  |)arli(id.ir  iiinile  inwhicli  its  contracts 
sliall  be  made,  that  mode  must  be  pursm-d,'  For  tiie  same  reason,  however, 
wliieli  made  it  necessary  to  relax  tlu;  ancient  rnh.'s  as  to  the  mode  in  whicili  a  cor- 
poration was  rcqiiirod  to  a(;l,  and  whicii  have  been  statiMJ  in  .-i  i)revi()iis  si<'tion, 
tills  rule  has  been  modllled,  and  corporate  bodies  have  bicn  ludd  liable  on 
eiif^ii.^emcnts  cnt(!rcd  into  by  their  agents,  though  in  a  different  manner  from 
that  pre.scribc<l  by  their  diartors  or  artich's  of  association.  In  the  followinfj; 
Ciiscs  the  corporatiotis  have;  been  rendered  liable  on  instrnmcnts  issued  and  con- 
tracts made  by  Lliem,  on  i)roof  of  usa;;e:  An  insniance  company,  on  a  policy 
siu'iied  by  the  president  and  countersi^^ned  by  his  assistant,  its  chailrr  providinjj 
lliai,  "all  policies  of  in^nranct;  made  by  said  company,  sii^ned  by  tlu!  president, 
or  in  his  absence  by  the  assistant  and  couulersit/ncd  hij  tln'  nin-ftfinj  shall  be 
bindini;  on  the  company."'  An  insnrance  company,  on  a  bill  of  exchange  si;ined 
only  by  its  presiilent,  the  act  of  incor|)orati(jn  providini;  that  "all  notes  and 
coiiiracls  si;^ned  by  the  president  and  anuUcraujne.d  hij  Ihn  secri'tiirij  shall  be 
biudin;;  on  the  corporation."  *  A  bank,  on  a  ccrlitlcatc  of  deposit  signed  Ijy  the 
cashier  only,  the  law  under  wliick  it  was  incorporated  re(|niring  that  "contracts 
made  by  any  such  association,  and  all  notes  and  bills  by  th(;m  issued  and  put  in 
(•ircalalion  as  money,  shall  be  signed  by  the  president  and  vic(!-|)r(\sidi'nt  and 
cashier  thereof ."  *  A  banking  corporation,  on  a  contract  for  services  executed 
by  a  less  number  of  directors  than  the  legal  numbi;r.''  ,  An  insurance  company, 
on  an  agreement  signed  by  an  agent  giving  the  [lolicy-liokler  permissit)n  to 
remove  his  prop<:rty,  although  the  charter  of  ih<:  com|)any  retpiired  that  all 
nsr:eiaents  in  relation  to  insurance  .should  be  signed  by  the  pr(\sideiit  an<l  secre- 
tary of  the  company.^  An  insurance  company,  on  a  parol  contract  made  by  its 
ugeut,  although  by  its  charter  authorized  only  to  make  contracts  by  the  signa- 
ture of  its  president,  or  such  other  person  as  its  rules  and  by-laws  should  direct." 
All  insurance  company,  on  a  promise  not  under  .seal,  it  being  only  autlKM'i/.ed  lo 
"borrow  money  and  issue  its  bonds  tlierefor.""  A  banking  corporation,  on  a 
bill  of  exchange  indorsed  by  its  cashier,  tiiongh  the  charter  declared  that  lis 
funds  should  in  no  case  be  liable  for  any  contract  or  <;nga'.i:iiiieni  whatevtM- 
uuluss  the  same  should  be  signed  by  the  presidenl,  and  tMtiiiiLeisigiud   by  the 


1  Sec  I?arilvs  and  B.Tnking,  ante,  §§  (;■)•(> 7. 

'  AiiR.  &  Ames  on  (Jor|).,  § '_'.">0;  lirilish 
Assiir.  <)o.  1'.  !>ri)wii,  13  V,.  1$.  72.i;  l);iwes  y. 
Niiilh  Uivor  liis.  Co.,  7  Ow.  4(i'i;  Ih^iid  r. 
I'l'oviiloiice  liiH.  Co.,  2  Crancli,  127;  Hill  v. 
Mandiosler  Water- Works  Co.,  2  Nov.  &  M. 
673 ;;i  Ham.  &  Cress.  .SGG. 

^  I'.ulklcy  V.  Uorby  Fishing  Co.,  2  Conn. 
1''i;  ante,  p.  143. 

■  Wilto  V.  Dcrljy  Fishing  (-o.,  2  Conn.  260. 
And  SCO  S.-ifTora  v.  Wy<;koir,  4  Hill,  442. 

'•>  B.irnes  V.  Ontario  IJank,  1'.)  \.  Y.  1,52. 

«  Bnulstiect  v.  Bank  of  IJoyalton,  43  Vt. 
128.    And  Bce  Itc  Bonelli's  Telegraph  Co.,  L. 


It.  12  K(i.  2li;;  Ivlirrily  c.  Kmcrson,  2:;  N.  II. 

'  .Now  Kn>;laii.l  l'':n^  Ins.  Co.  v.  .Si'hellli'r, 
38  III.  m\. 

"  .Sanbuin  r.  I'udnien'.s  lii.s.  Co.,  I(>  (iray, 
488. 

'••"1  imagine  the  bonds  intended  are 
such  writings  a.s  are  customary  .ind  suf- 
ficient for  the  purpose  among  business 
men."  Satfold,  .J.,  in  McCidlongh  v.  Talla- 
dega Ins.  C.'ii.,  4ti  .Ma.  376.  And  see  Jones 
V.  Trustees,  46  Ala.  62G;  San  frauuisco  Ua8 
Co.  V.   ^i\\\  Francisco,  9  (;ul.  471. 


W^ 

m 

;   ) 

t 

1 

is 

1 

\ 

i 

\ 

•* 

Null 


Lm 


■t  4 


I  •Hi 


w: 


m.  ^ 


246 


IN    DIFFERENT    UKLATION8    ANr)    OCCi;i»A TK  ).NS. 


Corpiii':lliolis. 


cashier  An  ■msurance  compiuiy,  on  an  aitrt'cmrnt  to  insure,  mart'-  l)y  an  airtiii, 
tliou'^ti  till'  cliartcr  providtMj  that  "all  policies  of  insurance  niaiic  jy  tlic  eorp.i 
ration  siiall  be  subscribed  by  the  president,  or,  in  case  of  his  deatl'.  oralisi  me,  i)v 
tile  vice-president,  ind  countersiiined  and  sealed  liy  the  secretary  of  the  cdiu- 
pany."'^  In  an  Kimlish  case,  seven  (hiys'  notice  was  required  by  tlie  (  liarler  of  a 
l)anlv  jin^vious  to  tlie  transfer  of  sliares,  and  tin-  vas  lield  to  be  dispi'iiscil  with 
by  tin;  previous  nsafro  and  [)raetico  of  the  banlv.''  So,  wliero  the  deed  of  siiile- 
nient  of  a  bankini;  company  allowed  shares  to  be  iransftu'red  upon  oIjiMiniii'^ 
tiie  "consent  of  the  i)oard  of  directors,"  which  was  to  be  evidenced  by  a  "dr- 
tlHcate  ill  writinu,  signed  by  three  of  the  dire<'tors,"  and  the  practice  of  tlie  ban!; 
had  l>een  for  tlie  niana^in<r  director  to  receive  liie  aiij)iicatii  us  and  si^n  a  ct- 
tillcate  of  cnn^iiit,  which  was  afterwards  signed  liy  two  if  me  directors,  it  \va> 
held  (liat  siicli  transfers  were  valid.*  Wiiere  the  consent  of  tlie  directors  \v;i- 
rei|iiired  to  a  transferof  stoclv  by  a  stockiiolder  indebted  to  tlu?  company,  but  in 
tlie  practice  of  the  company  such  cases  were  never  broufjlit  before  tlu  hoanl,  ,i 
transfer  made  without  such  consent,  but  accordinsi  to  the  usa<;e  of  the  comiKinj, 
was  considered  i!;ood.*  "It  is  insisted,"  said  tlie  court  in  one  case,  "  that  ii 
majority  of  tlie  direc^tors  could  not  bind  the  corporation,  lint  we  cannot  re;ianl 
the  presence  and  concurrence  of  all  essential  to  the  validity  of  tlieir  acts.  It 
would  be  nearly  iinpi act icablo  for  them  to  fullU  the  objects  of  tlieir  appoiiit- 
nieiit  under  such  a  restriction.  It  would  so  clou;  and  retard  their  operations  in 
tlie  business  with  which  they  may  be  daily  and  hourly  cliarjjed  as  to  defeat  Ihe 
bciieflcial  exercise  of  their  i)owers.  So  universal  is  the  usa,!:;e  for  a  majority  <>f 
the  directors  of  banks,  insurance  companies,  and  other  corporations  of  this 
description  to  act  for  the  whole,  that  a  power  to  do  so  may  by  yeueral  couscui, 
be  understood  to  be  implied  by  their  appointment."" 

§  lOG.  Lien  of  Corporation  on  Shares  of  Stockholder.  —  At  common  law, 
no  lit'i  exists  in  favor  of  a  cori)oratiou  upon  the  shares  of  a  stockiiolder  who  is 
indebted  to  it.'  The  charter,  articles  of  .association,  or  by-laws  may  create  sueli 
a  lieu,  and  the  shareholder  be  bound  thei-'by,""  except  in  the  case  of  natioii.il 


1  "In  the  jiulgnient  of  the  court,  the 
clause  of  the  cliartcr  does  not  aiiply  to  siieli 
contracts  or  engafremcnts  as  occur  ui,  or  are 
iH'ces.sary  to  the  ordinary  Ijiisiness  of  a 
casliier  or  agent,  sncli  as  drawing  or  indors- 
ing bills  <)£  exchange,  checks,  and  drafts. 
Tliese  acts  ai)pertain,  according  to  coin- 
nici-cial  law  and  usage,  to  the  oflici^  of  a 
cashier."  Nisl)et,  J.,  in  Merdiants'  Banli  c. 
(X-ntral  Banlv,  1  Ga.  418;  Preston  v.  Mi.s- 
souri,  etc.,  I^ead  Co.,  M  Mo.  4.'). 

-  City  of  Davenport  r.  i'ooria  Ins.  Co.,  17 
Iowa,  'J7(>. 

3  He  I?oyal  British  Bank,  K.\  parte  Walton, 
20  L.  J.  (Ch.)  r,i-l. 

*  Bargate  r.  .siiortridge,  .">  H.  T..  Cas.  207. 

'■  Clianibersburg  Ins.  Co.  r.  .'^inltli,  11  Pa. 
St.  120;  Cram  r  Bangor  House  I'roprii'tiiry, 
12  .Me.  ;?,"i4;  ICcyser  y.  Scliool  l)i?liict,  :!.">  X. 
IT.  4S:j. 


"  (.'rain  r.  Bangor  House  Proprietary,  \1 
Mo.  ;!.")4. 

"  .Massachu.t'lls  Iron  Co.  r.  Hooper,  7 
Ousli.  18:);  Heart  r.  State  Uanl;,  'i  Dev.  I'.n. 
Ill:  Dana  v.  Brown,  1  J.  J.  Marsh.  liOt; 
Steain^liip  Dock  t!o.  v.  Heron,  tii  I'a.  St.  J-io; 
The  I'eople  r.  Crocliett, '.i  (al.  Hi;  liriscull 
V.  West  Bradley,  etc.,  Co.,  .Ill  \.  V.  '.W. 

"  Brent  v.  Bank  of  Wasliiiigton,  10  I'et. 
.I'.K!;  German  Savings  Banlc  v.  .h'tK'r>on,  10 
Bu-li,:?2();  I-L'ggelt  v.  Bank  of  Sing  sing, -.'4 
N.  V.  '2S.!;  Arnold  r.  Suffolli  Banlc, -.T  I'.arli. 
424;  McDowell  v.  Hunk,  1  Harr.  (Di'l.)  .'7; 
Perpetual  Ins.  Co.  v.  Goodfellow,  ',)  Mo.  11'.'; 
Meclianii's'  Bank  f.  Merchants'  liank,  4."i  .Mi>. 
.'jl:!;  \'.iM-ianils  f.  Middlu.-c.x  r.aiik,  2ti  ('una. 
144;  Dri^coU  r.  West  Bradley,  etc.,  K.  Co., 5lt 
N.  Y.  '.)(;,  Child  V.  Hudson  Bay  Co.,  2  P. 
Wms.  207. 


lilitiiii'ii 


i.  1 


OUI'UKATIONS. 


17 


Lien  oil  Stock. 


Imiiks  organized  under  the  act  of  1864,  wliicli  in-tilutioiis,  hrinu;  cxprossly 
iltiiiiMl  the  power  of  ioiiiiiiijj  niont'v  to  ^tocki.ulilcr-*  nii  the  security  ol  iiieir 
.'(Ilk,  cannot  in  consc(|ueiice  be  clotlieil  with  :i  rijilit  so  im-oiisistent.'  To  wliat 
ixteiit  u  usajro  may  tal<e  the  place  of  ii  by-law,  or  a  (li«liiict  and  ofHeial  re;iii- 
liiliDii  in  creating  -ueh  a  lien,  was  roiisidored  in  an  early  IVnusylvania  ease,  and 
;i  (leiision  arrived  at  yivinij;  to  a  usage  an  effect  certainly  as  ^leat  as  necessary. 
Tlic  case  was  an  action  by  Morf^an  and  Smith,  the  assiiiiiees  of  one  Wain,  .igainst 
the  Hank  of  North  America,  for  refusinij  to  permit  his  stock  to  be  transferred  to 
thc'iii.  The  bank  answered  that  it  held  the  shares  as  a  set-off  a'.^aiust  a  dt^bt  of 
W'ahi's  due  to  it.  It  appeared  that  there  wa^  no  by-law  or  vritten  regulation 
of  the  l)ank  concernini?  the  transfer  of  slock  and  givini;  a  lien,  but  it  was  f^iven 
ill  evidence  that  it  wa-  tiie  unvaried  course  of  dealing  there,  always  insisted  on, 
tliat  no  stockholder  should  transfer  his  stock  while  in  del)t  to  tlu;  bank ;  tiiat  the 
debt  should  be  paid  ))eforc  the  bank  would  suffer  a  transfer;  and  this  usage  was 
woll  known  to  Wain.  The  court,  while  admitting  that  a  party  entitled  to  a 
tian>fer  of  stock  might  maintain  an  action  against  those  whose  duty  it  was  to 
make  tiie  transfer,'  ruled  that  the  custom  was  nevertheless  a  bar.  "A  course  of 
(kaiinir,"  it  said,  "a  usage,  an  understanding,  a  contract,  express  or  implied,  is 
a  lien  of  the  parties  and  a  law  to  them,  provided  they  are  not  repugnant  to  the 
charter  or  the  laws  n{  the  land.  This  in  contrary  to  neither.  If  the  restrictive 
clause  had  been  inserted  in  tlio  act  of  incorporation,  as  it  is  in  the  charters  of  the 
I'liihulelphia  Bank,  Farmers  and  Mechanics'  Bank,  and  Uni  )u  Bank  of  (Jeorge- 
t(twn,  tlieii,  according  to  the  decision  of  the  Supreme  Court  of  the  United  States 
iu  Union  Bank  v.  Laird,  '  no  person  could  aci|uire  a  real  right  to  any  share 
except  under  a  legal  transfer  according  to  the  rules  of  the  bank  under  the  act  of 
iiK'orporation,  of  wliich  he  is  bound  to  take  notice.'  Tlie  understood  notice  to 
.Mr.  Wain,  and  his  continuing  to  deal  with  the  bank  with  full  knowledge  of  this 
term  and  condition,  is  equally  binding  on  !iim  and  tiie  present  plaintiffs  as  if  it 
were  a  written  regulation,  a  by-law,  a  nrov'sion  in  tiie  ctiarter,  or  clause  inserted 
in  the  very  certiticate  of  stock.  The  bank  liad  an  undoubted  right  t(»  say  to  any 
.stockholder,  '  We  discount  your  note,  but  remember,  until  it  is  paiii  we  shall 
liold  your  stock  iu  security;  you  shall  not  be  permitted  to  transfer  it  until  you 
pay  us.'  There  is  nothing  unfair  in  this.  The  terms  are  known,  and  an- 
accei)ted  as  between  the  parties  to  the  i)resent  agreement  —  the  stockholder  and 
the  bank.  This  amounts  to  an  hypothecation  —  a  i)ledge  of  stock.  How  it  would 
have  been  in  a  controversy  between  a  'f/ir/  jidr  pnrcliaser  for  valuable  consider- 
ation and  without  notice,  who  pays  his  inouey  to  the  stockholder  on  the  faith 
of  tlie  certiticate,  intrusted  with  ttie  syin'ooi  of  the  property,  tlie  constructive 
Iciiai  possession,  tiie  title-dec'd,  on  it.-«  lace  an  instrument  transferalde  and 
assiirnable,  I  do  not  give  any  opinion.  It  is  a  very  different  question.  I5ut,  as 
between  these  parties,  call  this  answer  of  ;he  bank  what  you  please,  —  set-off, 
legal  or  ecpiitable,  pledge,  retainer,  s'j)pi.:ige,  course  of  dealing,  general  iiiider- 
.stauding,  usage,  contract,  express  or  iuijilied,  —  it  is  a  bar  in  law  aud  equity  to 


if' 


1  H'lsenbarkr.  Salt  Springs  National  Bank, 
5;i  l!;irlj.  49,5;  First  National  Hank  r.  Lanier, 
11  Wall.  Sfin;  Bullard  v.  National  Kank,  18 
Wa.    589;  Evansvillc  National  Bank  v.  Met 


ropolitan  I5ank,2  Biss.  527;  T.ockwood  v.  Me- 
cliuiiics'  N.ational  Bank,  9  U.  I.  IJOS. 

The  King  r.  Bank  of  Engliuul,  Doug. 
.'i.'";  I'nion  Bank  v.  Laird,  2  Wtieat.  a'JO; 
Wins;iir);e  r.  Greenbank,  WiUob,  581. 


24?s 


IN    DIFFKKKNT    RELATIONS    AND    OCCUPATIONS. 


\'\  f 


Insurance. 


tills  action."  Mr.  Prokkatt,  in  liis  valuable  notes  to  this  case  in  the  Aituriiim 
Decisions,'  says  that  the  point  decided  in  Munjan  v.  Bank  of  North  Amp.rica  li;is 
not  been  passed  upon  in  any  subsequent  decision,  but  the  soundness  of  ihc 
doctrine  is  not  disputed. 

§  107.  Transfer  of  Stock  —  Notice.  —  Proof  of  usa2;e  to  transfer  certificjitps 
of  stock  by  a  blank  indorsement,  which  may  be  filled  up  by  the  holder  i)y  writ  uu 
an  assiirnment  and  a  power  of  attorney  over  the  sifinutun;  indorsed,  is  admi^- 
siblc;'^  and  notices  to  stockholders  published  in  newspapers,  instead  of  givur 
persoi.ally,  are  good  by  virtue  of  usage.  ^ 


>   1 


*  J 


IV.  Insurancb. 

§  108.  Usages  in  the  Law  of  Insurance.  —  It  was  said  by  Mr.  Justice  Rn.i.KR, 
in  an  early  case,  that,  "in  policies  of  insiirance  in  particular,  a  ,^roat  litiludf  of 
construction  as  to  usage  has  been  admit  u.h'  Hy  usajfe,  places  come  witliiii  liic 
policy  which  are  not  expressed  in  words.  U.siige  not  only  explains,  but  tjvcn 
controls  the  policy."  *  Mr.  May  •'  objects  to  this  statement,  so  far  as  it  implii's 
that  contracts  of  insurance  are  sul)j(!ct  to  different  rules  of  construction  to  tlioso 
applicable  to  other  contracts;  but  while  his  po.sition  is  undoubtedly  the  cdin  ut 
one,  it  is  nevertheless  true  tliat  somt?  modern  courts  have  followed  the  opiiiinu 
of  Mr.  Justice  Bullkk,  and  have  in  many  cases  treated  the  contract  of  insiiriiiui 
as  one  particularly  to  be  considered  and  construed  by  the  usages  and  custom^  i<f 
the  mercantile  world.  Thus,  in  the  leading  case  of  Wahh  v.  Huiuor,^  it  is  >,ii'l: 
"The  construction  of  contracts  of  insurance  is  ;5f<;!(/(VnV// influenced  by  usai;( .' 
In  a  recent  case  in  Maryland,  where  an  attempt  was  made  for  the  first  tiiiu'  lo 
render  liable  for  general  average  on  a  cargo  damaged  in  endeavoring  to  extin- 
guish a  fire  on  a  boat,  certain  companies  which  had  issued  iire-i)olici('s  on  the 
boat  alone,  the  Court  of  Appeals  said :  •'  Now,  it  is  well  known  that  llre-pjiicics 
have  been  in  existence  for  centuries,  and  cases  like  the  present,  where  iJic  vi^ncI 
has  been  insured  by  such  policies,  and  the  cargo  insured  under  marine  poli(;i>'s, 
must  have  frequently  occurred;  and  yet  no  case  has  been  found  in  wliieii  it  iiiu 
been  held  that  the  fire-policy  must  contribute  to  the  loss  sustained  by  the  cur::  i. 
Not  only  this,  but  the  proof  in  the  record  shows  that  the  usage  and  laws  n  ((  .:- 
nized  by  mercantile  men,  and  by  which  such  policies  are  constrMcd,  arc  all 
against  this  contention.  In  determining  for  the  first  lime  a  (lue.stion  ari>iiiu' 
upon  insurance,  such  usage  and  laws  are  entitled  to  weight,  not  only  hucmisc! 
they  arc  app  ,  'cd  and  sanctioned  by  practical  and  sagacious  men  In  regard  to  a 
subject-mattci  in  which  they  are  alike  interested,  but  also  because  the  parties 
must  be  presumed  to  have  contracted  with  reference  to  them.  The  whole  law  of 
insurance,  it  has  been  said,  has  done  little  else  than  to  adapt  such  laws  ami 
usages,  and  to  give  to  them  the  force  of  authority."' 

Mr.  Aknoim.I),  in  liis  work  on  Murine  Insuraiicj','*  notices  this  tendency  of  the 


'  11  Am.  Dec.  ft'Q. 

i>  Ivi>rtriij;lil  v.  lUiiralo  Commercial  linnk, 
20  Wciul.  !)1.  And  sc(>  s.  c.  iO  Wend.  iU  ; 
Oc.:;-.:iiorcial  Hank  r.  K>>r(riKht,'2'2  Weiid.  MH. 

«  Uall  w   llnllcil  Males  Ills.  Co.,5Uill,4S4. 

4  Long  V.  Alluii,  VmL.  390. 


*  May  on  Ins.,  §  173. 

•  10  Mo.  6,  ante,  p.  IGO. 

'  Meicliaiits',  olc,    Tran^p.  Co.  v.  \f''>- 
ciated  Kireineu'8  lus.  Co.,  U  C'cul.  L.  J.  3iS. 
■  Cbup.  3. 


"fA. 


INSURANCE. 


24  i> 


Usiiiies  of  Uiulorwrilors. 


courts:  "A  notion,"  he  says,  "  apiKMrs    at  one  time  to  have  prevailed   t.liat 
policies  of  Insurance  formed  an  exception  to  the  rules  of  construction  iicucrally 
upplic-iblc  to  all  mtircantilc  contracts,  and  were  to  be  construed  solely  uitli  the 
view  of  carrying  out  the  intention  of  the  parties,  irrespective  of  the  ierni>i  in 
which  they  had  expressed  their  intentions  on  the  face  of  their  contract.     This 
notion  most  probably  arose  from  the  extreme  aiiibiiruity  of  the  terms  eini)loyed 
in  the  common  forms  of  policy,  which  reiiuireda  constant  reference  to  usaire  in 
order  to  explain  them.     Where  so  many  clauses  wen;  doubtful,  it  seems  to  have 
btcii  considered  that  none  could  bo  clear;  and  a  rule  of  conslrnctiou  only  api)li- 
(Mblo  to  tliose  portions  of  the  policy  which  would  be  intelliirible  without  refer- 
ence to  usaLje  was  extended  to  those  the  meauinir  of  which  was  too  clear  to 
admit  of  a  doubt.     It  was  also  hardly  sulliciently  boriK;  in  mind  that  the  rules 
of  construction  which  mip;lit  be  fairly  applied  to  the  common  printed  clause  of 
the  poli(!y,  which  were  not  the  immediate  terms  selected  by  the  i)arties  th'-in- 
selves  for  the  expression  of  th  -ir  meaninji,  were  less  appropriate  for  the  inter- 
pretation of  those  written  clauses  and  stipulations  in  which  the  parlies  may 
reasonably  be  considered  to  have  emjiloyed  the  laniiua'^e  best  ada|)ted  for  the 
exphiiiation  of  tlie  objects  ihey  had  in  view.     The  notion  thus  alluded  to  is  now 
regarded  as  erroneous;  and  the  true  rule  of  construction  is,  that  if  the  clau>es 
of  the  policy  are  in  themselves  clear  and  unambiiruous,  tlw'  courts  cannot  admit 
piirol  evidence  to  contradict,  to  vary,  or  to  explain  tluMu.     If,  on  the  contrary, 
they  are  obscure  and  ambiguous,  tiie  courts  may  resort  to  any  means  of  explain- 
in;;  them,  which  may  be  supplied  either  by  the  rules  of  the  couuuon  law,  the 
ireneral  usages  of  trade,  or  the  particular  circumstances  of   the  case."     And 
thouixh  these  ex|)ressions  are  frecpient  in  the  reports,  they  will   be   found,  on 
examination,  to  have  arisen  from  succeeding;  judi^i^s  havin;^  copied  tlie  laujixuaar 
of  their  predecessors  without  having  examined  tluiir  reasons.     The  criticisms  of 
the  text-writers  upon  these  (i((;<a  are  riirht.     There  is  notliiuii  in  tluM'ontract  of 
insurance  to  call  for  different  rules  than  those  apiilied  to  the  construction  of 
other  contracts.     The  correct  rule;  is  to  be  found  stated   in  several  cases,  both 
old  and  rec.'ont.     In  a  New  York  decision  it  is  thus  summed  up  by  S.wdi'ouo,  .). : 
"III  line,  we  believe  that  the  rule  of  construction  applicable  to  policies  of  insur- 
ance (l"i's  not  differ  from  that  applied  to  other  mercantile  instruments,     llx 
sense  and  meanins:;  are  to  be  ascertained  from  the  terms  of  the  policy,  taken  in 
their  plain  and  ordinary  siirnidcalion,  uidess  such    terms  hav«',  by  the   known 
iisaj^eof  trade  in  respect  to  the  subject-matter,  accpiired  a  uieaninu;  distinct  from 
the  popular  sense  of  the  same  terms,  or  unless  the   instrument  itself,   taken 
to'.re,tli(M',  shows  that  tlu^y  were  understood  in  some  peculiar  mannt^r,  and  tnal 
whih'  we  may  not  enlarge!  or  n-strict  the  clear  and  ex!)r'cit  lan.nua.ii"  of  the  eon- 
tract  by  proof  of  a  custom  or  usaite,  yet  in  the  application  of  the  '•oiilract  to  its 
suhjocl-niatter,  in  l)rinuin<r  it  to  bear  upon  any  particidar  objei'i,  the  custom- 
and  usa'.;es  of  trade  are  admissible  to  ascertain  what  subjticts  were  within  and 
what  were  excluded  froui  its  operation.     Such  evidence  is  proper,  on  the  sami- 
principle  that  proof  of  t.   '  meauiu^j;  of  technical  word-;,  and   words  of  .'-cieuee 
and  I'lc  arts,  is  permitted  in  arrivin.n  at  the  intention  of  the  parties  in  the  cou- 
slrnciion  of  contracts."  '     In  liubarlson  v  French,-  decided  in  1603,  Lord  Ei.i.kn- 


lloiu!  i>.  .Mutual  .siifuly  liis.  Co.,  1  .SniiUf. 


-  4  KaRt,  130. 


11^^^ 


liii 


ff!'" 


win 


ii 


i 


flf 


I  i  s  I 


i 


,1 


'ij 


250 


IN    IHIFEUENT    liKLATIONs    AND    OCCUPATION.S. 


Marine  Insurance. 


uoROUGH  said:  "In  tlic  course  of  the  argument,  it  seems  to  have  been  assumed 
that  some  peculiar  rules  of  oonstruction  apply  to  the  terms  of  a  poliLv  of 
assurance  vviiich  are  not  equally  applicable  to  the  terms  of  other  instrumeuts 
and  in  all  other  eases;  it  is,  therefore,  proper  to  state  upon  this  head  thit  tlie 
same  rule  of  construction  wliicli  applies  to  all  other  instruments  ap[)lit's  i'i|iialiy 
to  this  instrument  of  a  policy  of  assurance,  viz.:  that  it  is  to  be  coiistnicd 
aecordinj;  to  its  sense  and  meanina:,  as  collected  in  the  first  place  from  the  ti  rins 
usi'd  in  it,  which  terras  are  themselves  to  be  understood  in  their  plain,  onliuary, 
and  popular  sense,  unless  they  have  generally,  in  respect  to  the  subject-matter,  — 
as,  by  the  knov?a  usage  of  trade,  or  the  like,  —  acquin.'d  a  peculiar  sense,  distinct 
from  the  popular  sense  of  the  same  words,  or  unless  the  context  evidiiiily 
points  out  tliat  they  must  in  th\i  particular  instance,  and  in  order  to  effectuatp 
the  immediate  intention  of  the  parties,  be  understood  in  some  special  ami 
peculiar  sense." 

§  109.  Mr.  Arnould's  Pour  Rules.  —  Mr.  Arnould  '  gives  four  rules  as  to  tin; 
admissibility  of  evidence  of  custom  and  usage  in  the  interfu'etation  of  marine 
policies,  which  later  authors'^  have  approved  as  being  equally  applicable  to  all 
other  kinds  of  insurance.     They  are:  — 

1 .  Every  usage  of  a  particular  trade  which  is  so  well  settled  or  so  generally 
known  that  all  persons  engaged  in  that  trade  may  be  fairly  considered  as  con- 
tracting with  reference  to  it,  is  considered  to  form  part  of  every  policy  dc>iL;mid 
to  protect  risks  in  such  trade,  unless  the  express  terms  of  the  policy  decisively 
repel  the  inference. 

2.  The  usage,  in  order  to  be  binding,  must  be  either  a  general  usage  of  the 
whole  mercantile  \V(.)rld,  or  a  particular  usage  of  universal  notoriety  in  the  trade 
upon  which  and  <-tf  the  place  at  which  the  insurance  is  effected.  The  iisaiic  of 
a  particular  place  or  of  a  particular  class  of  persons  cannot  be  bindinij;  on 
non-residents,  or  on  other  persons,  unless  they  are  shown  to  have  been  coiini/.ant 
of  it. 

3.  Where  the  sense  of  the  words  and  expressions  used  in  a  policy  is  eitluT 
ambiguous  or  obscure  on  the  face  of  the  instrument,  or  is  made  so  by  proof  of 
extrinsic  circumstances,  parol  evidence  is  admissible  to  explain  l)y  usage  their 
meaning  in  a  giviu  case. 

'..  A  resort  to  parol  evidence,  however,  is  only  permitted  where  the  laiiiiii:ij;o 
of  the  policy  is  cither  obscure  or  ('(luivocal.  Such  evidence  will  never  he  ad- 
mitted to  set  a-ide  or  control  its  plain  and  unambiguous  terms. 

§110.  Every  general  Usagre  prima  facie  Part  of  the  Policy  —  Marine 
Insurance.  —  In  the  law  of  marine  insurance,  it  may  be  stated  as  a  well-established 
rule  that  every  usage  of  a  particular  trade  which  is  so  well  settled  or  so  gcnenilly 
known  that  all  persons  engaged  In  it  may  be  fairly  considered  as  contra—inn  with 
reference  to  it,  is  considered  to  form  part  of  every  policy  desisrned  to  ijrotcct  risks 
in  such  trade,  unless  the  express  terms  or  the  policy  decisively  repel  the  iiiler- 


'  Arnould  on  Ins.  W. 


>  May,  Angell,  and  other'4. 


MARINE    INSURANCE. 


251 


U.^iifies  Incorporated   into  Policies 


.•ncc    Every  underwriter,  said  Lonl  Manskiei.d  in  an  early  case,-  is  presniried 


1 


lobe  aci|iKiiiited  witli  tlic  practice  of  tlie  trade  he  insures.  "  Tlie  priniiple 
upon  wliicli  evidence  of  usa'jce  is  rec<Mved  at  all  to  explain  a  policy,"  says  Mr. 
\iiN()i'LD,^  "  is  that  the  parties  to  it  are  supposed  to  liave  contracted  with  ref- 
•I'Tice  to  such  usay;e.  With  regard  to  usages  which  an-  eitiier  coniiiioii  to  all 
trades,  or  perfectly  well  known  and  settled  in  the  particular  course  of  trade  to 
which  tlie  insurance  relates,  it  is  ol)viously  a  fair  presumption  that  the  parties  to 
ihc  i)()li('y,  as  mercantile  men,  are  conversant  witii  such  usa;irs  and  have  con 
ir;u:te(l  willi  reference  to  them.  Such  usages,  in  fact,  form  part  of  the  law- 
merchant,  and  to  incorporate  them  with  the  policy  is  nu^ndy  to  admit  th.* 
ailtlition  of  known  terms  not  inconsistent  with  the  tenor  of  the  instrument, 
:tii(i  well  understood  by  the  contracting  parties;  but  with  regard  to  usages 
which  only  prevail  in  a  given  place,  or  amongst  a  particular  description  of  pei 
M)n-,  the  presumption  is  the  other  way,  and  in  such  cases,  accordingly,  it  must 
he  satisfactorily  shown  that  the  party  sought  to  be  affected  by  the  usage  either 
iiail  or  might  have  had  cognizance  of  it."  This  principle  Mr.  Aknoui.i)  illus- 
iratcs  in  Ills  Law  of  Marine  Innurance.  by  several  cases  whicli  have  been  decided 
as  to  tlie  admissibility  and  effect  of  evidence  of  the  usage  at  LloydN,  and  which 
will  be  found  below.* 


m 


'  AnimiM  on  Ins.  (")  (approved  by  May' 
Aiiscll,  ami  other.-) ;  Hancox  v.  Ki-liing  Ins. 
(■ii.,'.!Suinn.  l;!2;  Union  Hank  v.  Union  Ins. 
(  o.,t)iiilley  (S.  C),  171;  Hartshorne  t'.  Union 
Ills.  Co.,  5  l!o?w.  r)36;  ;!(>  N.  Y.  172;  Gray  v. 
»\van,  1  liar.  &  .1.  \ii;  Murray  t».  Hatch,  « 
.Ma*s.  177;  Sianloii  r.  Natchez  Ins.  Co., 
fi  IIdw,  7U  ;  r.liick  r.  (/'aliiornia  Ins. 
Co.,  li  .v.  V.  ;t'J,'$;  Hazard  v.  New  EnslanJ 
M.iiiju'  Ills.  Co.,  8  I'ei.  ,'>o7 ;  Iluck  i-.  Cliesa- 
pfake  111-.  VjO,  1  I'et.  151;  Fabbri  v.  riiiiiiux 
lii~.  C().,,V)  .V.  V.  129;  Pittsburg  In.-,.  CJo.  v. 
Dravo,  i  W.  \.  C.  IM. 

-  .Viibin  I'.  Ken  noway,  2  Doug.  510. 

^  Anioulii  on  Ins.,  §  4.'t. 

*  "  .\s  the  great  majority  of  insurance 
business  in  Kngland,"  says  Mr.  Anioiild  (I 
Ins.,  p.;:!),  "isslill  carried  on  by  the  private 
uiiilcrwrilci's  who  meet  at  Lloyd's,  it  might 
have  been  considered  no  very  violent  jire- 
Hiiiniitiiin  that  all  parties  resident  in  this 
I"  aintiT  emiiloying  brokers  to  ellect  policies 
f'T  thfin,  ill  the  common  course  of  busi- 
iii'-s,  ilimilil  be  considered  to  have  done  so 
wi  I'  "efurunce  to  the  usages  cstabli-hed  at 
1.1.1  (••specially  whore  such  policies  have 
iHMMi  ;,(  ,,ily  otTccted  for  them  at  that 
li'iusc.  Such,  however,  has  not  been  the 
result  of  the  decisions;  but  it  has  been  held, 
t'-piMially  by  Lord  Tenterden,  that  altboiiKli 
I'liai'  pidof  may  be  given  of  a  particulaiB 
u-:ii:el)L'iiig('st:iblislicd  at  Lloyd's,  and  even 
lli"iit'h  the  fact  maybe  that  the  policy  wa 
•'Ihi  ii'il  hy  a  broker  at  Lloyd's,  in  the  com- 
iii'iii  cour.se  of  business,  for  a  party  resident 


In  this  country,  yet  that  such  party  cannot 
be  atfccted  by  the  usage  unles-  \i  can  bii 
further  shown,  cither  that  he  was  actually 
cognizant  of  it,  or  from  bis  general  modes  of 
dealing,  habits  of  life,  or  place  of  business, 
cannot  bo  supposed  to  have  been  ignorant 
of  it.  (jiabay  r.  Lloyd,;!  i$ani.  .t  <'ress.  793; 
Bartlett  v.  I'cntlarid,  10  Hani.  A  Cress.  760; 
Scott  I'.  Irving,  1  Hani.  A  Adol.  OO.");  Stewart 
V.  Aberdein,  4  .Mee.  &  W.  211.  A  Li'^rpool 
house,  through  the  agency  of  a  liOndon 
broker,  etf'icled  a  policy  at  Lloyd'.^  on 
horses  'warranted  free  of  jettison  and  raor 
taiity,'  from  Liverpool  to  Jamaica.  In  the 
"•ourse  of  the  voyage  a  violent  storm  came 
on,  during  which  the  hor.se.s  broke  down  the 
parliiioiis  thai  separated  them,  and  three  of 
them  were  kicked  to  death,  liie  under 
writer  refused  to  make  good  his  loss,  on  the 
ground  that  on  policies  containing  this 
warranty  it  was  contrary  to  the  linage  of 
Lloyd'.-,  to  pay  any  los-.  for  niuit:ility  on  livf 
.stock  occurring  in  the  ''ourse  of  the  voyage, 
excejil  where  the  ship  was  lost  bef.ire  ar- 
rival, '1'Ik'  tads  ol  the  ca-e  were  -stated  in 
the  form  of  a  special  verdict,  whieh.  set  out 
the  custom  ai  Lloyd's,  a>  proved  at  the  '.rial, 
but  did  not  contaiu  any  ilnding  that  the 
plaintiff  was  cogiii.-ant  of  -\ich  usage.  The 
CKurt,  under  these  'ircumstances,  held  thai 
the  plaiiilitf  was  not  bound  by  the  usage; 
it  w.as  not  found  to  be  :i  general  usage  of  the 
whole  trade  in  the  ciiy  of  London,  and, 
tluu'efore,  in  order  to  render  it  binding  on 
the  plaint  iff,  it  ought  to  have  been  dintiactly 


m 


I 

M 

:          Jjl 

'2h2 


IN    nil'KKRENT    KKLATIONS    AND    OCCLi'ATlONS. 


Marine  Insurance;. 


i 


§  111 .  Commencement  and  End  o(  Risk.  —  It  is  a  rule  of  law  that  a  risk  on  ;i 
sliip,  or  on  j^oods  therein,  comincnces  only  at  M»e  very  port  or  plare  ikiukhI  in 
tlu!  policy  as  that  from  wliioli  tlie  ship  is  to  sail,  or  wliorc  the  y;<)()(ls  arc  to  hr 
loaded,  and  ends  only  when  the  ship  has  reached  the  port  to  which  it  is  insiirci! 
But, — as  has  been  seen  where  t!ie  liability  of  thi;  carrier  for  the  rcciipt  an  I 
delivery  of  jj;oods  has  been  called  in  question,'  —  if  a  general  usage  can  b(;  show  i 
that  the  ship  is  to  sail,  or  the  goods  hv  taken,  or  the  ship  land,  or  tlio  '^oiuU  lir 
discharged  at  another  place  than  that  naiiutd  in  the  policy,  the  underwriter  or  tl,.' 
insurer  will  be  bound  by  such  a  usage,  and  will  not  be  alloweci  to  dispute  h:s 
liability,  or  set  np  a  right  on  the  ground  of  the  conditions  in  the  policy.  Kni'jsti.n 
V.  ICnihbs,'^  decided  by  the  King's  Bench  in  180S,  was  an  action  on  a  policy  on  ii  siii|) 
at  and  from  Oporto  to  London.  The  sliip  liaving  taken  in  a  part  of  licr  air^D 
williin  the  bar  of  Oporto,  went  outside  to  take  in  tlie  remainder,  when  slie  wa^ 


foiiml  lli.'it  lie  wa.s  cognizant  of  it.  (i;!i)ay  r. 
Lldvd,  ;{  I5:irn.  A  Cress.  793.  Had  tin-  I'vl- 
dciicc  at  the  trial  kIiowii  that  the  |)litiiUift' 
wa.s  in  tl>c  liabit  of  effecting  policii's  at 
Lloyd's,  that,  the  court  said,  wotikl  have 
warranted  the  s|>c(ual  verdict  in  Undintr  that 
he  had  knowli^JgC  of  the  n.'-.'j,'(!  in  <iiic-ti'iii. 
By  the  general  usage  of  tlie  law  mcr('antilo, 
the  insnriincc-broker  is  considered  as  doblo'' 
to  the  underwriter  for  tlie  prcnjioins,  while 
the,  underwriter  is  debtor  to  the  assured  for 
the  loss.  Per  L;)rd  Tcnterden,  in  Bartlott  c. 
I'enlland,  10  Barn.  &  Cress.  780.  A  custom, 
however,  has  long  prevailed  at  Lloyd's,  an<l 
is  well  known  to  all  who  transact  business 
there,  tliat  the  insurance-brokers  settle  with 
the  underwriters  according  to  the  slate  of 
their  accounts  with  thcin,  in  which  accounts 
th(!  broker  is  made  the  debtor  to  the  undor 
writer  for  all  premiums  on  any  policies 
effected  l)y  him  with  such  underwriter,  no 
matter  on  whose  account;  and  the  undei'- 
writer,  in  the  same  w.ay,  ia  made  debtor  to 
the  broker  for  all  losses,  as  between  th(! 
underwriter  and  the  broker.  Such  settle- 
nuMit  on  account  is  conisidorcd  as  payment, 
according  to  the  custom  at  Lloyd's  ;  whether 
it  is  also  to  bo  considered  as  between  iho 
uuderwrilcM- and  the  assured,  depends  upon 
till!  question  whether  the  assure  I  can  fairly 
be  presumed,  from  nil  the  cireann.-tanccs  of 
the  case,  to  htive  been  cognizant  of  the 
ii>age.  If  he  be  himself  resident  in  London, 
or  has  for  a  coiisider;tl)Ie  len','ih  of  time 
bt^en  in  the  habit  of  employing  insuraneo- 
brokcrs  to  elfeet  polici(!s  for  him  at  Lloyd's, 
then  ihe  reasonable  presumption  is  that  ho 
was  aware  of  the  usage,  and  will  he  bound 
by  it.  If,  on  the  other  hand,  he  was  not 
resident  in  London,  and  cannot  be  shown  to 
have  been  for  any  length  of  time  in  the  habit 
of  effecting  insurances  at  Lloyd's,  the  rea- 


sonable presumption  will  be  the  other  \v,n  , 
and  he  will  not  be  bound  by  the  u.siprc.    ,Si  ,• 
the  cases  of  Baitlett  v.  I'oiitlaiid,  10  llani.  ,\: 
Cre-s.  700;   Scott  r.  Irving,  I    IJani.  ,t  AM  1. 
()().■);  Stewart  v.  Aberdein,  4  Met;.  &  W.  ill. 
So  strong,  however,  has  tlic  binding  Imiei  I 
a  usage    at   Lloyd's   been   coii.-iileri'il  wil'i 
regard  to  .".il  those  in  the  habit  of  traii-aci 
ing  business  there,  that  in  one  case  it  \va- 
eveu  admitted  to  prove  a  mode  of  adjii-t 
nienl  inconsistent  with  the  true  |iniirliil(- 
of  niarinu  insurance  as  acontrael  fur  imli'iii 
nity.    Thus,   where,   in   an  open  pnlirv  mi 
freight,  the  assured  conliMided  lliat  hi' wii- 
entilUid,  in  case  of  a  total  loss,  to  ie(',"Vir 
the  amount  of  llie  gross  freifilit  withmil   iiiy 
reduction,  and  to  establish  this  right  ciiilcl 
witne-sos  of  thirty  or  forty  years'  experi- 
ence  at   Lloyd's,    who   s(;ited   that,  thuiiuii 
open  policies  on   freight  were  rare,  yet  tli  ■ 
uniform  custom  of  seltlinglo  s(!s  iipnii  tin m 
had  been  to  paj-  llie  assureil  the  aiiiDiiiil  '■< 
the  gross   freight.      Defendant    al-o  eallo  I 
witiie>scs  nearly  eipial  in  i\uiiil)er;,inl  i'\;'t' 
rience,  who  slated  tliat  they  were  nut  awai' 
of  the  existence  of  the  usage,  as  swm  n  t"  1) 
plainlid's  witnesses.    Seereimil.p  '■-'.    Tli 
(joint  admitted  the  evidence,  alili  ui^'li  tin. 
allowed  thai  the  practice  seemed  iiii'.on.-i-' 
cut  with  the  true  principles  of  indi'innii;. 
I'almert'.  BlacUb  rn.l  Bing.dl.    In  this  (mm' 
Chief  Justice  Dallas  doubled,  but  I'ark,  .1., 
and  Burroughs,  J.,  the  oilier  two  meiiilHi 
of  the  ciiuri  then  |)resent,  were  clear  llul 
the   evidence    had    been    rightly  admiitcil. 
It  is  not  stated  in  IIk!  e,.i«e,lint  may  l.c  i.nrly 
inferred  from  it,  thai  the  policy  wa-  ■:;■■'•  l"'! 
with  a  party  well  conver.-iini  with  ilio  gcu 
eral  course  of  business  at  LK)yJ's. 

'  Aiitp,  j  7!t. 

»  1  (;amp.  508. 


MAKIxNE    INSURANCE. 


253 


Deviation. 


illmul  :uiv 


driven  out  to  sea  in  a  gale  of  wind,  and  raptured.  The  defence  was  tliat  the 
iiniliTwriters  had  not  been  informed  tiiat  she  was  to  talie  in  any  part  of  her 
cargo  outside  the  bar.  Several  witnesses  testitied  on  the  trial  tiiat  it  was  cua- 
toiniirv  to  do  so  at  Oporto  when,  from  the  stiile  of  tlie  river,  Miey  could  not  cou- 
wiiiintly  load  inside  the  bar.  Lord  ELr.iiMioiioiMui  rnh;(l  t!i;it  the  underwriters 
wiTe  bound,  of  themselves,  to  take  notice  of  the  iis;iy:e,  anil  the  plaintiff  had  a 
V  rdict.  In  Moxon  v.  Atkins,^  the  policy  n-ad,  "a!  and  from  the  ship's  loadins; 
[lort  or  ports  in  Amelia  Island  to  London."  There  was  no  port  on  that  island, 
mid  ships  never  touched  there;  bnt  the  vessel  in  question  took  in  her  carso  at 
T'zri'  Ishuid,  which  lies  a  little  farther  up  tlie  river  St.  Mary's.  The  plaintiff 
iiiul  ;i  verdict,  Lord  Em.i'XUououoh  saying:  "Tlie  words  of  the  policy  cannot  lie 
liicnilly  understood,  for  there  is  no  i)ort  in  Amelia  Island  where  the  ship  could 
lii:i(l.  The  real  (iU(!stion  is,  whether  there  has  b(>en  a  loading  at  Amelia  Island 
witliin  the  meaning  of  the  parties  when  the  policy  was  effected.  Strictly  and 
locnlly,  there  has  been  no  loailing  at  Amelia  Island.  But  it  is  possilile  that  in 
111  rcuiitile  contracts  Amelia  Island  may  denominate  a  region  in  which  Tigre 
M.ukI  is  comprehended.  Essequibo  has  been  held  for  some  i)urposes  to  be  part 
of  DoiiuTara,  although  the  two  settlements  are  quite  distinct.  There  is  the 
luort-  familiar  instance  of  Westminster  being  con.-idered  in  Loudon,  the  general 
n:imi!  for  the  metropolis,  yet  we  know  th'>t  in  strictness  London  only  compre- 
lntKls  the  limits  of  (he  city.  The  cireumsfauce  of  the  ship  paying  duties  and 
cioariiig  at  Amelia  Island  may  go  a  irreat  way  to  show  that  ships  which  do  so  are 
omcivcd  to  have  loaded  there.  The  question  here  will  be  whether,  upon  the 
evidfiux',  this  cargo  can  be  said  to  have  been  loaded  at  Amelia  Island  according 
tutlio  usages  of  such  voyages.  If  it  was,  the  policy  attached,  although,  literally 
spi'al^iMg,  no  |)art  of  the  cargo  had  ever  bei.-n  upon  Aimdia  Island." 

So  as  to  arrival  and  delivery.  It  was  fonnerly  the  custom  at  Archangel, 
lumu'diately  on  a  ship's  arrival,  to  seal  down  her  luitehes,  send  a  custom-house 
o;!i  ov  on  board  till  she  was  uuloaded,  and  carry  I  he  goods  to  the  government 
wai'ehoiwes,  where  they  remained  till  the  duty  was  paid.  A  merchant  who  had 
iiiniire'l  his  goods  from  London  to  Archangel,  "  until  they  sliould  be  there  dis- 
chirjed  and  safely  landed,"'  was  ludd  to  have  no  right  of  action  against  the 
uiiderwriter  for  any  loss  that  had  occurred  to  the  goods  after  the  hatches  had 
biTU  sealed  down  and  the  revenue  oIliciT  put  on  board;  for,  as  Lord  Ei.i.kn- 
iitiKoiiciM  said,  the  goods  were  there  lauded  according  to  the  usual  course  of 
trade  at  Areliangel,  which  was  all  the  luiderwriter  undertook.^  Likewise,  in  a 
case  in  the  Supreme  (Jourt  of  the  United  States,  where  a  custom  wis  proved 
pi'i'vailiii'j;  in  the  port  of  Legiiorn,  that  goods  shipped  for  that  port  should  be 
invariably  landed  at  the  Lazaretto,  it  was  held  that  ono  who  had  insureii  certain 
;:i)nds  "till  they  were  safely  landed  at  Leghorn  "  could  not  protect  them  by  sueh 
piliey  after  they  were  once  landed  at  the  Lazaretto,  such  being,  by  the  custom 
ut  the  trade,  eipiivaleut  to  a  landing  at  Leghorn.^ 


II; 


i.'i 


§111.'.  Deviation.  —  The  doctrine  of  deviation  is  one  of  considerable  impor- 
ta  lie  in  the  law  of  marine  iu-urance.  Shortly  stated,  and  as  established  by  the 
adjiidieatioiis,  it  is  this:  That  the  meaning  of  the  parties  to  the  policy  is  unl- 


H 


'  :iCa\n|). '>00. 

■  liniwii  i:  ('ai-.stiiirs,  3  Cunip.  160. 


>  Grucie  v.  MaryUnd  lui.  Co.,  S  Oaiicb,  ?■'» 


2;:«4 


IN    DIKKKKi.NT    RELATIONS    AND    0CCU1•AT10^^S. 


Marine  Insurance. 


!  1 


vTMuly  understood  to  be  that  the  ship  shall  proceed  from  one  terminus  of  i]|,. 
vofiagf  insiirou  to  tiie  otiier  in  a  direct  course,  without  touchin;^  at  any  jnti  !■. 
mediate  point  or  piirsuing  any  intermediate  adventure.  Therefore,  if  sUv  ii,, 
so,  witt'.out  leave  for  that  purpose  being  expressly  given  in  the  policy,  tins,  JHiU- 
ever  trifling  in  extent  or  duration,  is  &  deviation,  although  the  ship  mav  aii. .. 
wards  return  to  her  proper  course:  and  this  will  discharge  the  undcruriii  r  ■ 
But  tlie  usage  of  the  trade  may  cliange  this  rule,  provided  it  be  clearly  tstiili- 
l.'shed  and  general  in  its  operation,  and  may  justify  a  ship  in  quitting  tlic  din^it 
hie  between  the  port  of  departure  and  the  port  of  destination.^  Tlius,  it  Wmz 
usual  for  sliips  sailing  through  the  Sound  to  stop  at  a  certain  point  to  pay  tli" 
Sound  dues, '  and  it  being  the  usage  of  the  trade  to  take  in  an  additional  can'o  nt  ihc 
place  into  wliich  a  ship  might  be  driven  by  sti'ess  ot  weather,' these  stopiML." '■ 
did  not  discharge  ^he  underwriters.  On  the  same  principle,  in  the  Ka«t  \n<\\,i, 
and  Newfoundlann  traders,  it  has  been  ruled  in  many  cases  to  be  no  de'-iatinn  to 
engage  in  int'u'inc.'  ytiges,  because  of  a  usage  which  every  uiiiltiuii;.  r 

insuring  in  those  i  »*  .    bound  to  know.     Such  intermediate  voyairo  wuc 

understood  to  be  i.,  -iMtceu  in  the  course  of  the  voyages  insiirrd/  liefvn  nee  j^ 
also  proper  iiere  to  the  cases  which  establish  that  a  ship  may  visit  the  ports  in 
the  voyage  in  thr  -  idor  vhich  n -^'"e  and  custom  has  established,"  allliouiili  tin 
rule  of  law  is  thai  thr  >,.  .p  rnH.,f,  vis-it  ffuch  ports  in  the  ffenfintphiml  onlT  cf 
their  distaf-p  from  the  terminus  or  port  of  departure.''  A  deviation  .sinii)ly  ;  r 
the  purpose  of  saving  property  will  discharge  the  insurer;*  but  not  so  if  ams- 
t<>m  of  the  river  permits  it.* 

"  Where,  however,"  it  is  said  by  Mr.  Arnould,  "  the  policy  itself,  iM'sides 
indicating  the  termini  of  the  voyage,  contains  any  direction  as  to  tlie  cduinc 
which  the  ship  shall  take  in  sailing  between  them,  such  din-etions  nuist  hr  fol- 
lowed with  the  most  scrupulous  and  literal  exactness,  and  the  slightest  failure 
to  comply  with  tiiera  will  amount  to  a  fatal  deviation."  This  is  but  anoiiiir 
instance  of  tiie  oft-repeated  rule  that  a  usage  will  not  be  heard  to  contradict  r'lc 
words  of  an  express  contract.'"  Elliot  v.  Wilson  "  is  a  leading  case  iipoii  tlii^ 
point.  It  was  usual  for  vessels  sailing  from  Carron  with  goods  or  frci^lit  for 
Hull,  in  going  down  tlie  Frith  of  Forth,  to  touch  at  different  places  for  llic  i)iir- 
pose  of  taking  in  and  delivering  goods,  particularly  at  Borrowstoncss,  Liitli, 
and  Morri-^-on's  Haven.  A  mercliant  who  was  desirous  of  insuring  goods  on  a 
voyage  from  Carron  to  Hull  directed  his  broker  to  effect  an  iiisurani'i',  with 
liberty  in  the  policy  "  to  call  as  usual "  (which  would  have  enabled  the  ship  to 


1  3  Kenfti  OoiniTi.ol2;  Arnould  on  Ins.  5.54; 
Fox  V.  Uluck,  Park.  620;  TowiiKon  v.  (iuyon, 
Park. 620;  Clason  v.  Sinnnonds,  6  Term  llep. 
633. 

2  See  Crosby  v.  Pitch,  12  Conn.  240;  Bab- 
cock  V.  May,  4  Ohio,  3:54;  Lowry  v.  Uiissell, 
8  Pick.  36(1;  McCall  y.  Sun  Mutual  Ins.  Co., 
66  N.  Y.  uO.") ,  Eyre  v.  Marine  Ins.  Co.,  5  Watts 
A  8. 116:  Wright  v.  Holcombe,  6  Upper  Can- 
ada C.  P.  Ml. 

^  Corinack  v.  (lladstone,  11  Kast,  347. 
*  Delancy  v.  .Stoddnrt,  1  Term  Hep.  22. 
■'  Salvador  «.  Hopkins,  3  liurr.  1707;  Greg- 
ory V.  Christie,  3  Doug.  419;  FarquhttrBon 


V.  Hunter,  Park.  lOH;  Vallanc.n  c.  Dcw.ir,  1 
Camp.  ."JOS;  Ougier  r.  Jomiiiig.^,  I  Ciuiin.  .Wf. 

'■'  ISeutson  V.  Ilaworlli,  i;  Tfim  i;t|i.  ful; 
Uairdner  v.  Senhou.se,  3  Taini.  Hi. 

■  Clason  V.  Simmonds,  0  Term  l{e|i.  .1:": 
Andrews  v.  Mollish,  5  Taun.  Mi:  .Mar-ili'u 
V.  Keid,  3  East,  677;  Kauu  r.  Coloiiiiil  lu^. 
Co.,  2  Johns.  264;  Deblois  c  Ocean  Ins.  (o., 
18  Pick.  ;50;};  Mellish  v.  .\iuliew.-.,  i  Mun.  * 
Sel.  26. 

'Scaramanga  v.  Stami),28  Week.  Kep.  «itl. 

•  Walsh  r.  Homer,  10  Mo.  16;  <»n<f,  p.  m. 

"0  Post,  Chap.  V. 

"  4  Bro.  F.  C.  470. 


MAFMNK    INSUKANCE. 


255 


!-.i| 


General  Averajie. 


touch  at  all  or  any  of  tli-  ihree  places  above  mentioned).  Instead  of  this,  the 
tirokor,  contrary  to  th(i  directions  of  tlie  nuTchant,  and  without  his  knowled're, 
;n>iiirud  the  jioods  on  the  voyage  from  "Carron  to  Hull,  with  liberty  to  stop  at 
Lfith."  The  premium  was  the  same  as  usual.  The  ship  sailed  on  her  voyasiie, 
passed  by  Leith  without  callinij  thi;re,  but  put  into  Morrison's  Haven.  She  sus- 
taiiiiMl  no  damaiie  there,  but  was  afterwards  overtaken  by  a  storm  and  wrecked 
in  the  coast  (if  Newfouu<lland.  Tiie  Scotch  court  decr"ed  ai^ainst  the  iinder- 
wiiler<.  but  tiir  House  of  Lords  reversed  their  judi^nuiil,  on  the  jiround  tiiat 
imttinii  into  .Morrison's  Haven  under  a  polir.  which  contained  no  liberty  to  do 
<o,  hut,  on  the  contrary,  jrave  express  permission  to  put  into  another  named 
pi)rt,  was  a  deviation  discharsiins:  the  underwriters  from  all  further  liability. 


iljl 


§  113.  General  Average.  —  Thi'  doctrine  of  general  averaaie  may  thus  be 
stiiti'd:  ^'If  i/ikkJ.--  nri'  ii'i'i  •■"(iriiij  thrown  mn  rfKinnl  for  the  piirpoae  of  ii'j/Uenuu/ 
lh(  ship,  the  loss  is  to  he  madf  (jood  btj  the  coiUrilmtion  of  oil,  hrcmist-  it  was 
iuciirrcd  for  the  h'-iipfii  of  ull.''^  The  doctrine  is  founded  in  ])uri'  etjuity.  The 
vuriiice  bcini^  nia'.le  for  the  -al'ei.y  of  liie  vessel  and  remainin.;  'aruo,  the  owuiT 
of  the  ,£;oods  should  beav  ii)  more  than  his  just  proportion  of  the  loss  thus 
imurred.  Krom  the  ben''il;  of  this  rijiht  to  contribution  tiie  owner  of  goods 
loaded  above  deck  was  excluded,  on  the  irround  that  such  loadimr  is  improper, 
tiMiiiing  to  embai'rass  tli''  niovment<  of  the  crew  and  the  workin;:-  of  the  ship. 
To  the  universal  application  of  the  rule  (excluding  deck  cargo  m  rious  objec- 
tion has  be(!U  made  from  the  outset,  and  strt'uuous  efforts  ii^<'d  to  limit  its 
opoiation.  It  has  been  urgi.H'  rha.  -onic  goods  may  be  placed  on  de  k  without 
cmharrassing  the  crew  or  the  nii>\eiii(iits  of  tht;  vessel,  and  espt.<i;dly  in  short 
voyages  from  port  to  port:  that  custiun  has  estal)lislied  the  safety  of  such  load- 
iiiLT.  in  somi;  kinds  of  cargo,  and  in  voyages  between  certain  phicis;  and  that 
whore  such  loading  is  in  pursuance  of  contrart  with  the  carrier,  he  cannot  urge 
tlip  objection  that  it  is  imi)roper.  From  the  beginning,  most,  if  not  all  elemen- 
tary writers  on  the  subject  have  stated  the  rule  with  exception^.  Valinsays: 
"Tlic  doctrine  excludin'Z  goods  carried  on  deck  (and  jettisoned)  from  general 
average  ought  to  bo  controlleil  by  the  usarjes  of  trade  ;  and,  accordingly,  contri- 
bution may  be  claimed  for  good'-"  Tlirown  overboard  from  tht;  decks  of  small 
I'oasting-vessels,  or  river  ryaU,  which  usually  carry  part  of  their  cargo  on 
ileek.'"  The  only  exception  which  seems  well  supi)orted.  of  an  early  date,  is 
one  in  favor  of  goods  carried  on  deck  in  pursuance  of  ntstota.  What  is  .said  in 
till'  early  cases  and  elemenlary  works  respecting  goods  so  carried  on  small 
(■oastiiig-vessels  must  be  ref(  rred  to  custom,  and  is  true  only  to  the  extent  that 
■^nch  custom  is  shown  to  exist.  .As  tlie  reason  for  exclusion  is  the  unsafe  and 
iiiip'''>per  loading,  it  might  be  suppf)sed  that  the  rule  would  nf)t  apply  in  any 
lasc  where  it  could  be  shown  by  testimony  that,  from  the  charactei'  of  the  cargo 
iir  the  voyase,  the  loading  is  .safe  and  proper.  A  carefid  examination  of  the 
aulliorities,  however,  will  sliow  that  this  question  of  safety  i-  referrred  to  the 
judgment  of  th(!  trade,  as  expressed  in  its  customs,  and  cannot  be  iiKiulred  of  in 
liny  other  wav.'' 


Valin'sOnl.  .!(•  la  Mar  .art.  111. 

Wot.il  r.  I'lKiiiiN  Ins.  Co.,  ;i7  T.ecr.  Int.  148:  Miller  r.  TetherliiRton,  6  Hurl.  AN.  278. 


2bH 


IN    DIFFERENT    RELATIONS    AND   OCCUPATIONS. 


Marine  Insurance. 


§  114.  Extent  of  the  Policy.  —  It  had  been  settled  by  several  case»i  that  in 
ii  policy  of  inariiie  insurance  cffcctcl  upon  certain  floods  on  an  outward  voy- 
age and  their  "proceeds"  home,  the  word  "  proct.-eds "  meant  the  sairn- us 
"produce,"  viz.:  sonietliinjj  proceedin;^  fiom,  or  produced  by  soinetliiuu;  else  — 
the  same  amount  or  value  of  ^oods  sold  and  converted  into  money,  or  mxxls  pur- 
chased with  such  money,  or  c.xchanj^ed  for  tlie  orii^in.il  goods.'  Sinli  ,i  con- 
slruction  was  therefore  inconsistent  with  the  idea  that  the  term  siiould  iuclndc 
tii(!  identical  jioods  brought  home  on  the  return  voyage.  When,  therefore,  in 
D  'W  V.  WhcUfiii,'  decided  by  the  Supreme  Court  of  New  York  in  IS.'A,  tl;:,  pn;. 
ci-e  question  arose,  the  court  ruled  that  where  goods  are  shipped  for  a  voviiiic, 
and  a  policy  is  effected  upon  the  goods  out  and  upon  the  "  proeeeils  "  tiuiuof 
home,  the  identical  goods  composing  the  outward  cargo,  brought  lunnc  on  ilie 
reliirn  voyage,  would  not  be  considered  as  included  in  the  word  "  proceeds,"  no'- 
covered  by  the  policy;  anil  that  a  usage  to  the  contrary  was  not  material.  But  in 
the  Court  of  Errors  this  rnling  was  rever.sed.  "If  the  plaintiff,"  said  CIkiikmI- 
loi-  Wai.woutu,  "  could  have  shown  a  settled  usage  among  conimercial  mm  to 
consider  the  same  specific  articles,  when  brought  back  upon  the  return  vo\iii;i', 
U)  be  the  proceeds  of  the  outward  cargo,  and  to  be  included  iu  that  term,  Ik 
should  have  been  permitted  to  give  such  evidence  to  the  jury." 


.-,,  ,^,  -.1 


III 


§  115.  Apportionment  of  Premium  —  Adjustment.  — And  the  general  rule  of 
law  that  there  can  he  no  appurbwiiment  of  the  premium  inhere  the  risk  is  iiUiic, 
may  be  entirely  changed  by  an  established  usage  to  apportion  the  premium  in 
ei:riain  cases.'  But  in  Homer  v.  Dorr,^  where  the  insurance  was  on  prupirty 
laden  on  freight  from  Boston  to  Archangel,  and  back  to  Boston,  taking  the  risk 
on  shore  as  well  as  on  board,  in  an  action  on  the  premium-note,  it  was  licid  thai 
the  whole  note  was  recoverable,  though  no  properly  was  returned  in  the  -lii]!, 
although  it  was  proved  to  be  tlie  universal  usage  in  Boston,  where  the  in^uramc 
was  effected,  to  return  a  portion  of  the  premium  in  such  cases.  This  ease  vva- 
subsequently  followed,  in  Eager  v.  AtUtA  Itmurance  Compann,''  by  Mio  saiin' 
court,  which  decided  that  the  rule  of  law  that  in  adjusting  a  partial  loss  on  ,i 
sliip  which  lias  been  repaired,  the  proceeds  of  the  old  malerhils  not  used  in  tli  ■ 
repairs  are  first  to  be  deducted  from  the  gross  expenses  of  the  repairs,  and  liuu 
tlie  deduction  of  one-third  new  for  old  to  be  made  from  the  balance,  could  not  i»i' 
altered  by  a  usage  to  make  the  deduction  from  the  gross  amount  of  thee.xpeii'^t  - 
of  repairs.  "The  usage,"  said  \Vn,i>i';,  J.,  "  is  opposed  to  the  esseiiee  of  lli'' 
eontniet  of  insurance,  whicli  is  a  contract  of  indemnity.  The  usage  is  also 
opposed  to  the  rule  of  law,  as  we  understand  it,  by  which  i)arlial  los>es,  wlicii 
vessels  arc  to  be  repaired,  arc  to  be  adjusted."  On  the  other  hand,  in  .Viabama, 
a  custom  in  the  city  of  Mobile,  as  to  the  mode  of  adjusting  damages  in  easi'> 
of  partial  loss  on  valued  policies,  to  pay  the  difference  between  tlu;  sal''s  i)ricL' 
of  the  injured  article  and  the  price  stipulated  in  the  policy,  was  held  alid  ami 
binding  on  parties  residing  and  contracting  in  that  city.     It  was  argued  thai  the 


■  Haven  r-.  Gray,  12  Mass.  76;  Whitney 
.Vmericai)  Ins.  Co.,  3  Cow.  210. 

-'  8  Weml.  1(!0. 

■  Both  well  r.  Cook,  I  Bos.  &  V.  172;  Lewis 
V.   Thatcher,   15  Mass.   438;  Stevenson  v. 


now,  3  Burr.  1237.     Contra,  llomui  v.  lA 
10  Mass.  2a. 
<  10  Mass.  26. 
^  14  rick.  141. 


MAUINK    INSURANCE. 


2:)' 


U.'^ai'us  ill  Dit'fcrciit  Ciises. 


rule  in  such  cases,  to  find  a  per  centum  of  loss  by  calculation  based  on  tlie  true 
value  of  the  uninjured  and  of  the  injured  goods,  and  to  itpply  this  to  the  sum 
insured  on  the  policy,  was  wull  settled,  and  the  text-books  and  reports  were 
cited  to  sustain  this  contention.'  But  the  court  saiil:  "The  general  law  re,<j;u- 
latiiii;  the  assessment  of  damages  niitlcr  such  [)oli(;ies,  even  if  it  differed  from 
this  custom,  must  give  way  to  it.'* '  Yet,  again,  in  a  recent  Massachusetts  case,'' 
tlu'  rule  of  law  that  in  estimating  a  loss  under  an  ujien  policy,  the  damages  are 
to  be  based  upon  the  market  value  of  the  goods  at  the  inception  of  the  risk,'  it 
was  held  could  not  be  affected  by  a  custom,  which  the  defiMulant  offered  to  prove, 
that  the  invoice  value,  and  not  the  market  value  at  the  time  and  place  of  ship- 
ratnt,  was  treated  as  the  basis  of  insural)le  value.  "  Tins  being  the  rule  of  law 
as  to  damage,"  said  the  court,  "the  custom  of  a  particular  port  could  not  vary 
it."i 

riic  commercial  practice  of  adding  the  premiums  to  the  invoice  value  may  be 
moditied  and  controlled  by  a  local  usage.* 


§  116.  Other  Cases.  —  So,  in  a  marine  insurance  case,  evidence  of  usagehas 
been  admitted  to  show  when  the  outward-bound  risk  determined  and  the  home- 
wurd-bound  risk  commenced;'  to  show  the  length  of  time  allowed  to  sliippers 
to  discharge  their  cargo  after  the  arrival  of  the  vessel  in  port; "  that  the  owner 
of  goods  stored  on  deck  should  not  receive  any  contribution,  by  way  of  general 
average,  from  the  ship-owner  in  respect  of  the  jettison  of  goods  so  stowed;*  tliat 
the  underwriters  on  ships  should  not  be  liabk:  to  contribute,  by  way  of  gemu'al 
average,  in  resjjecttosuch  goods;  '"  that  the  destruction  of  rigging,  while  stored 
on  the  banks  of  the  Canton  River,  was  within  the  policy  covering  a  "  voyage ;"  " 
that  a  policy  of  insurance  on  I'-ast  India  ships  includes  the  chance  of  their  being 
detained  in  India,  and  the  risk  of  what  is  known  as  the  country  trade  there; '" 
that  a  policy  from  London  to  Madras  and  Ciiinu,  with  liberty  to  touch,  stay,  and 
trade  at  any  ports,  etc.,  until  the  vessel  shall  arrive  at  her  last  loading-place  in 
the  East  Indies  or  China,  covers  an  intermediate  voyage  from  Madras  to  IJeugal, 
the  vessel  arriving  at  Madras  too  late  to  proceed  tliai  season  to  China;  '^  that 
ships  engaged  in  the  Newfoundland  trade,  after  their  arrival  at  Newfoundland, 
make  iuteruii  diate  voyages  from  one  American  port  to  another  before  beginning 
to  load  a  cargo  on  the  homeward  voyage.'*  And  a  party  may  exempt  himself 
from  the  consequences  of  the  general  law  tliat  the  insured  must  provide  a  pilot,'* 


1  1  Arnould  on  Ins.  970,974:  2  Id.  310; 
Nat  iii'z  Ins.  Co.  v.  IJiiokner,  4  How.  03. 

-  Fiiltnn  111-.  Co.  r.  .Milner,  X?  Ala.  4!>.0. 

'  Warren  i\  Krankliii  Ins. Co.,  lot  Muss.  ."518. 

'  Collin  V.  Ni'\vl)iii'y|iort  Ins.  (Jo.,  9  Mass. 
4:'i6;  Le  Hoy  v.  United  States  Ins.  Co.,  7 
J()lins.  'M'i:  Carson  v.  Marine  Ins.  Co.,  2 
Wash.  C.  Ct.  4(J,S;  Cox  v.  Charleston,  etc., 
Ins.  Co.,  3  liich.  L.  3;tl. 

■'  And  see  as  to  usage  and  the  settlement 
iif  averafrc  losses,  .Sanderson  r.  Columbian 
Ins. Co., 2  (Jrauch  C.Ct.218;  Stnrgis i>.  Cary, 
2  Curtis,  ;»>. 

''  Merchuutii'  Uutual  Ins.  Co.  v.  \S  iloon,  2 
MU.  217. 


7  (Jaindcn  v.  Cowley,  1  W.  Bhic.k.  417. 

•  Noble  V.  Kennoway,  2  Doiiji.  .111. 

•  Milward  V.  llibbert,  3  Q.  B.  120. 
10  fbitl. 

n  felly  v.  Koyal  Kx.  Assur.,  1  Burr.  341. 

:■-  Salvador  «).  Hopkins,  3  Burr.  1707. 

'•■'  Cregory  v.  Christie,  3  Dou;?.  419. 

'*  Vallauce  v.  Dewar,  1  Cainp.  403;  Oiigier 
V.  Jennings,  1  Camp.  .503,  note. 

I '  llollingworth  v.  Brodenck,  7  Ad.  &  E. 
U;  Law  r.  Hollingsworth,  7  Term  Kep.  160; 
I'hillips  V.  Headlrtin,  2  Barn.  &  Adol.  3B0; 
Sadler  v.  Dixon,  tt  Moo.  &  \\.  900. 


17 


mm 


25« 


IN    DIFFERENT    RELATIONS    ANI>    OCCUPATIONS. 


!'         f 


Fire  Insuiaiu'c. 


•t  'I 


V 


7i   i 


by  sliowins  that  by  the  usage  of  the  port  he  was  exempted  from  providing  onn.' 
And  iiltlioiij^h,  in  ttie  law  of  marine  insurance,  a  concealment  of  paper>  aiiiiiMiits 
to  a  breach  of  warranty,  it  was  held  in  an  early  ease  in  the  Supreme  Court,  ui  the 
United  States,  that  "when  the  underwriters  know,  or  by  tlie  usage  and  course 
of  tile  trade  insured  ouglit  to  know,  tliat  certain  papers  ought  to  be  on  lioard  fi)i 
the  purpos<!  of  protection  in  one  event,  wliicli  in  anollier  miglit  endanu'iT  iIk 
property,  tliey  tacitly  <:oiiNent  that  the  papers  shall  be  so  used  as  to  pruu  it  the 
proixnly."  ■'  So,  (nidenet;  of  usage  is  competent  where  tlu;  (pieslion  is  MlntiuT 
the  risk  has  been  increased  by  tiiking  on  board  a  deck-load  of  cotton.^ 

§  117.  Every  general  Usage  prima  facie  part  of  the  Policy  —  Fire  Insur- 
ance.—  What  lias  been  said  in  the  former  section  as  to  the  effect  of  u.>ai:i'  on 
contracts  of  marine  insurance  is  equally  applicable  to  contracts  of  lire  iusuninee 
Tlie  parties  are  presumed  to  make  liieir  agreements  in  accordance  with  tiie  cus- 
toms of  tlieir  business.^  And  tlie  general  rule  that  one  engaged  in  a  parlicului' 
business  is  presumed  to  contract  with  reference  to  the  well-known  usages  i<\ 
that  particular  business,  may,  perhaps,  be  extended  beyond  this  stateineiit,  for 
it  must  include  the  incidents  of  tiiai  business.  Thus,  a  lire-insurance  coinpa.'iy, 
for  example,  insuring  a  munufacluring  eslal)lisliinent  must  be  presumed  to  be 
familiar  with  the  use  of  terms  employed  in  that  trade.* 

§  118.  Customary  Incidents  of  the  Business  insured.  —  Tlie  leading  case  of 
Harper  v.  City  Insurance,  Conip(in>/  >■  Hys  down  this  general  rule,  wiiicii 
numerous  authorities  support,  viz.:  That  where  a  certain  trade,  or  iiusiness,  or 
occupation  is  insui'ed,  the  insurer  is  to  be  taken  as  consenting  and  agreeing  that 
all  its  customary  incidents  shall  be  allowed,  though  the  policy  does  not  hi  ('\pie.ss 
words  permit  it,  and  may  even  by  iiiiplicution  forbid  it.  In  Harper's  case,  tlie 
insurance  being  upon  a  printing  and  Itook-binding  establishment,  and  the  use  of 
camphene  being  necess;iry  and  customary  for  the  conduct  of  the  business,  the 
insurer  was  held  liable  for  a  loss  caused  by  tlie  igniticni  of  camphene,  and  tliis 
although  tluMc  was  a  <!ondition  in  the  policy  exempting  the  insurer  from  any 
loss  occasioned  by  camphene.  By  insuring  the  plaintiff's  stock  with  the  privilej.-je 
of  a  priiiliiig-onice  and  a  book-bindery,  it  was  well  said  by  the  court,  the  uxof 
such  materials,  including  camphene,  as  were  necessary  in  that  business  was 
allowed;  otherwise  the  contract  was  a  mere  delusion.'  Following  the  priiKiple 
of  this  case,  where  a  policy  on  a  fair-building  Insured  property  therein  "  bLloii'.'- 
ing  to  exhibitors,"  it  was  held  that  the  use  of  Are  and  steam  to  exhibit 
maoliinery,  and  the  keeping  of  a  restaurant,  and  a  kitchen  with  ovens  ih(;rciii, 
did  not  defeat  the  insurance,  and  that  the  keeping  of  articles  to  be  exhibit cd,  or 
to  be  used  as  means  of  the  exhibition,  was  not  a  use  of  the  building  "  for  the 
purpose  of  keeping  or  storing"  them  therein.'    Where  a  policy  was  issued  on  a 


'  Cox  V.  Charleston,  etc.,  Ins.  Co.,  >3  Kich. 
L.  3.31. 

2  LivingBton  r.  Maryhind  I  iis.  Co.,7  Crancb, 
506. 

^  Lajihain  r.  Atlas  Ins.  Co.,  2i  Pick.  1. 

••  Homo  Ins.  Co.  t',  Kavoiite,  46  111.  263; 
Staiiilard  Oil  Co.  v.  Triuuipli  Ins.  Co.,  3  Cent. 
1 ..  J.  602. 


'  Daniels  v.  Hud.son  River,  etc.,  Ins.  f'o., 
12  Cusli.  416;  Sims  v.  State  Ins.  (^).,  IT  Mo. 
54 ;  May  r.  Hiiokeye  Ins.  Co.,  25  Wis.  2'.)1. 

''  Ante.  p.  148. 

'  .See  also  Harper  v.  Albany  Mutual  Iris. 
Co.,  17  N.  Y.  194.  • 

•^  Mayor  v.  Hamilton  Fire  Ins.  Co.,  10 
Bosw.  .537;  New  Voik  v.  Exchange  Ins.  Co., 
9  BoHW.  424. 


FIKE    INHUUANCK. 


259 


Im-idents  of  MnsiiU'ss   Insincd 


lutunl  111!. 


buildinir  occupied  us  a  iniuuifmttory  of  liat-bodios,  and  tlic  conditions,  unionjr 
occupations  di-noniinatcd  "extrii-ii:i/.;inli>iis,"  iiic.liidiid  "  curpcntors  in  tli(>irt)\vii 
shops,  or  in  Ijiiildinj^s  orectinir  or  n'[i,iiriiiji,"  the  use  of  a  room  in  tlii'  hnildin-: 
as  a  shop  for  the  purpose  of  ropaiiinu,'  the  inaoliincry  ncccssury  for  tiio  business 
of  iimkins  hat-hodios  was  protected  l)y  tlu;  policy.'  Wliere  tlie  policy  was  on  a 
stock  of  flour,  irniin,  and  ''ooperajjjecoutiuued  in  a  stone  and  brick  steaui  flourgiii- 
niill,  and  prohibited  the  buildinj:  from  beiuir  used  for  mechanical  operations 
requiring  heat,  the  use  of  a  kiln-drying  cornmeal-mill  re(|uirin;jj  lire  did  not 
avoid  the  policy,  if  such  a  mill  was  a  usual  appendage  of  the  business  of  a  sieam 
f|ourin;;-mill.'  Wh«;ro  a  policy  on  flie  materiid  of  a  photo^iraplier  pi'ohibiicd  tin; 
koHjMii^  of  kerosene  in  the  buildiuir,  if  the  •■  e  of  a  keroseue-oil  stove  was 
necosary  and  ordinary  in  the  pliotonraiihic  br.iiness,  the  insured  mi,i>ht  use  it, 
witliout  avoidln-;  the  policy.-'  Wlu'ri;  a  policy  covers  "a  slock  of  dry  j^oods  and 
(;rocfiie«,  such  as  are  usually  kc-pt  in  country  stores,"  the  lani^uairi!  ^ives  a 
license  to  keep  for  .sale  any  article  usually  kept  in  country  stores  of  that  class, 
cvon  Ihougli  it  involves  the  keeping;  of  many  articles  comiujr  iind(!r  the  head  of 
"huzardous."  ♦  Hut  where  a  polic.y  covers  a  stock  of  nK.'rchandise  "  hazardous 
and  not  hazardous,"  no  such  license  can  be  imputed,  even  thou;4li  it  i)e  shown 
tlut  the  keeping  of  "  extra-ha/.anlous  goods  "  was  usual  in  such  stores  as  that 
of  the  insured;^  nor  where  the  term  is  restricted  to  a  "stock  of  family  gro- 
ceries," even  though  the  insurer  knew  that  the  plaintiff  kept  sUch  good";,  and  I  lie 
application  called  for  insurance  "  upon  a  slock  sueli  as  is  usually  kei)l  in  a 
country  store."" 

It  l)eing  the  custom  of  the  grocery  trade  to  keep  oil  and  spirituous  li(|Hors  in 
their  stores  for  the  puri)i)S(;  of  ordinary  retailing,  this  is  not  a  •'storing"  within 
a  policy  of  insurance  on  a  grocery  store  prohibiliug  "  the  storing  therein  of  oil 
and  spirituous  liquors;  "'  or,  it  being  the  custom  of  the  dry-goods  trade  to  keep 
cotton  in  bales  for  sale,  such  a  keeping  is  not  a  violation  of  a  condition  against 
applyin:,'  or  using  the  store  insured  lor  storing  articles  of  a  hazardous  cliaracter, 
cotton  in  bales  being  denominated  in  another  part  of  tlu;  policy  as  an  ♦'article 
of  a  hazardous  character.""  It  being  usual  for  dealers  in  fancy  goods  and  toys 
to  keep  flrc-works,  a  policy  on  the  stock  of  a  fancy-goods  dealer,  •'  with  privilege 
to  keep  flre-crackers  for  sale,"  will  embrace  "tire-works,"  even  though  the 
policy  provides  that  if  the  premises  shall  be  used  for  keeping  articles  "  siiecially 
hazardous,"  it  shall  be  of  no  effect;  and  in  this  class  are  placed  "lire-works."® 
It  being  usual  in  china-factories  to  keep  a  carpenter  constantly  employed  in  anu 
about  the  building  makuig  racks,  shelves,  etc.,  necc.'ssary  for  the  proper  conduc. 
of  the  business,  this  will  not  be  considered  as  within  a  provision  in  a  policy  as 


'  I-ounsbnry  v.  Protection  Ins.  Co. , 8  Conn. 

45',t. 

-  Washington,  etc.,  Ins.  Co.w.  Mechanics', 
ctc.Ins.  Co.,5  0hio  St.  450. 

■'  ilall  V.  Insurance  Co.  of  North  America, 
58  N.  Y.  ^)2. 

*  H;ilf('ity  V.  New  Rrunswiek  Ins.  Co.,  r? 
Hair.  (.\.  J.)  4S0;  I.cgjjett  i».  Insurance  Cn., 
10  Klch.  L.  292;  Niagara  Fire  Ins.  Co.  r.  Oc 
<iraff,  12  Mich.  124;  (iiranl  Fire  Ins.  Cn.  v. 
Stephenson,  44  Pa.  St.  298;  Citizens'  Int*.  Co. 
t'.  McLaughlin,  54  Pa.  St.  4a6;    Archer   v. 


Mer(!hiinls',  etc.,  Ins.  Co.,  43  SIo.  434;  I'in- 
dar  v.  King's  County  Ins.  Co.,  30  N.  Y.  (J-IS. 

■>  Pindar  v.  Contiucntal  Ins.  Co.,  38  N.  Y- 
3(14. 

"  People's  Ins.  Co.  v.  Kuhn,  I  Cent.  L.  J. 
214;  I'indar  v.  Resolute  Ins.  Co.,  47  N.  Y. 
114. 

'  Langdon  v.  Elquitablu  Ins.  Co.,  1  Hall, 
227. 

•^  Moore  t>.  Protection  Ins.  Co.,  29  Me.  97. 

*  Steinback  v.  Lafayette  Iiu.  Co.,  64  N. 
Y.  90. 


I 

f     imni 


^;i 


i;J  ■  U 


t  ■  r;^:t 


iiii 


f  li 


■•■1 


11 : 


2(i() 


IN    DIIKKUKNT    UKF<\TIC)NS    AND    OCflUI' ATIONS. 


Fire  Iiisiiriinoe. 


to  "  carpfntnrs  in  their  own  sliops,  or  in  l)uil(iinus  erculini^  or  repairing;."  '  Ir 
hcins  cnstoin.iry  in  country  stores  to  keep  ;i  couplo  of  I«'<j;s  of  ixiiiipowilrr  for 
sale  in  small  quantities,  tliis  will  not  avoid  a  poliey  on  sueli  a  sti)ii>,  .iiw  cif  the 
conditions  of  which  may  be  that  "  the  koepiuK  of  gunpowder  for  sale,  or  on 
sloraj^c  upon  or  in  tlu;  premises  insured,  shall  render  Mu:  poliey  voi<l." ' 

Benzine  being  used  in  the  finishing  of  rustic  window-shades,  such  a  use  in  a 
"  inantifaeturina;  establishment,"  insured  as  such,  will   not  avoid  the  policx, 
thougli  prohibited  in  terms  therein;  '  nor,  beint;  used  in  a  wa'^on-inaker's  stiop, 
and  beinj;  customarily  used  in  the  manufacture  of  vvair ons.  will  a  tire  arisiim  from 
this  tluiu  prevent  a  recovery  on  a  policy  which  expressly  provides  that  tlic  eoni 
pany  shall  not  be  liable  for  damage  resulting  from  "the  use  of  campii-ni',  spjrit- 
iiis,  or  burning-fluid."*     Benzole  being  commonly  used  in  tlie  maniifucture  oi 
patent  leather,  such  a  use  is  not  a  breach  of  a  condition  in  a  policy  on  .i  p  Uont 
leather  manufactory  which  allowed  the  keeping  of  benzole  In  no  other  place 
than  in  a  shed  detached  from  the  building,  where  the  insured,  in  eoiiliictin',' 
their  business,  carried  it,  as  n(;eded,  into  tlie  f;u;fory  in  an  open  can.*    la  th<' 
manufacture  of  brass  clock-works,  turpentine  Is  used  for  cleaning  the  works, 
alcohol  in  making  a  mixture  called  lacker,  and  saltpetre  in  making  a  dipiiiiis, 
and  which  are  all  emi)loyed  in  the  business.     A  poliey,  therefore,  on  the  hlnck 
ill  trade  of  a  maniifactiiier  of  brass  clocks  is  not  avoided  by  using  aiul  kcrp- 
iiig  these  articles  on  hand,  although  they    are   expressly  prohibited  therein.''' 
A  poliey  on  the  stock  of  a  "rope  manufacturer"  will  permit  the  business  ;)f  d 
"  rope-maker"  in  the  building  insured,  though  that  trade  is  prohibited  in  anotluT 
part  of  tlie  policy.'     A  policy  on  railroad  buildings  will  not  be  avoided  by  the 
customary  use  of  a  dummy-engine  near  tl^e  buildings,  though  such  use  increases 
the  risk."    A  policy  on  incsrchandise  such  as  is  usually  kept  in  country  stores 
is  not  avoitied  by  keeping   hardware,  china,  glass-ware,  and  looking-glasses, 
without  particularly  describing  them,   though   such  particular  description  !■> 
r<>quired  by  its  terms."     A  policy  upon  stock  such  as  is  usually  kept  in  countr. 
stores  covers  spirits  of  turpeiuine  and  gunpovvd(!r,  if  usually  a  part  of  the 
stock  of  country  stores,  although   tliese   articles  are  in   another  part  of  tlie 
policy  prohibited  from  being  kept  therein.'"     In  Pindar  v.  Jung^s  Coxuitij  Insur- 
ance Ooinpan;/,^^  (Jkovbk,  .!.,  of  the  New  York  Court  of  Appeals,  disciissinif  sueli 
a  poliey,  said:  "The  des(-ription  of  the  goods  insured  l)y  the  policy  was  sucli 
goods  as  are  usually  kept  in  country  stores.     To  determine  what  particular 


■  DeloiiKiicmare  e.  Tradesmen's  Ins.  Co., 
2  Hull,  ttm. 

«  Leggett  V.  .villains.  Co.,  10  Rich.  T..  •Mi; 
Phoinix  Ins.  Co. /•.  Taylor,  .'>  Minn.  4!)2.  I'.iit 
see  iMaeoniber  v.  Ilowartl  Ins.  Co.,  7  <i''ay, 
•2.57;  Iteacon  Life,  etc.,  Assur.  Co.  v.  tiii)b,  i 
Moo.  I'.  (;.  C.  (N.  s.)7:i. 

"  Vii'le  V.  Ciermani.'i  Ins.  Co.,  'Hi  Iowa,  10. 

*  Archer  v.  Merolianis',  etc.,  Ins.  Co.,  4 '. 
Mo.  4:U. 

"•>  (Jitizens'  Ins.  Co.  v.  McLauglilin,  ."59  Pa. 
St.  485.  "They,"  [the  company]  said  the 
court  to  the  jury,  "must  be  suppo.sed  to 
know  Uiat  it  was  carried  on  in  tlie  usual 
and  customary  way;  and  if  it  was  usual  and 


cu.-!t()m;iry  to  employ  benzole  la  tl:i  iiiaii!  ■ 
factare  of  such  leather,  they  must  be  pif 
sunied  to  have  known  the  fad,  :inil  to  Uav-- 
contracted  with  reference  thereto." 

'■  r.ryant  r.  Poughkeepsie  Mill    :'l  li;s.rii., 
17  \ .  Y.  JOO. 

•   Wall  V.  Howard  In,.  Co.,  14  Uarl). ;:»;!. 

■■'  TheConnnonweallli  v.  Hide  anil  Leather 
Ins.  Co.,  112  Mass.  I'M. 

'  Franklin  Fire  lus.  (Jo.  v.  UpiliK'iatf,  4:' 
P.i.  St.  ;!!)0. 

Pindar  r.  King's  County  lus.  (Ju.,  jt)  ^'  Y- 
648. 

"  36N.  Y.otd. 


FIKK    INKUKANCK. 


2(51 


I  IK  yiiisi'  of   Uisk. 


({ooils  wore  coveroil  oy  the  policy,  it  was  HcoLs.sary  to  :i-.ii  ituiii  wliul.  jjoods  wore 
iisiiMliy  kt'pl.  in  comilry  sloi-c.s.  This  reiKhired  proof  of  wliiiL  wiis  so  krpi,  ncco- 
^ary  aiid  compiHont.  'riii'  oljjiiction  to  this  cvidciHc  was  tliercforc  propi  riy 
overruled.  'V\w  ovideuci'  showiitl  that,  spirits  of  iiirpciitiiK;  and  ^iimpowdcr 
were  usually  kept  in  country  s'oros.  Thoso  articles  were  tlius  l)roiii;lit  within 
lilt  description  ol  tlu'  policy,  and  covercd^jy  it.  It  was  wliolly  ininiatv  rial 
whether,  when  stocks  of  country  stores  were  Insured,  it  wiis  usual  to  niiikc  sonic 
'peeiid  a!Jjr*";ni(  nt  in  ndation  to  lluisc  articles.  Tlu!  inquiry  was  siui|)ly  \vli(iher 
ibey  wiri:  usually  kcjil  in  ctnmtry  stores,  not  how  they  were  insured  wiu'U  so 
kept,  if  at  all.  Aided  by  llic  proof  given,  the  o"  cy  in  (piestion  must  l)e  con- 
suued  as  insuring,'  spirits  of  turpentine  and  l!,i.'  i|)<)\.  Icr,  .o'^^cther  with  th(>  otlu'r 
fjoocis,  as  much  as  thou^ii  these  articles  had  been  pecillcally  mentioned  as 
insured  in  the  policy.  In  Ilarpp.r  v.  Alhnnn  Mutual  JiiKurancc,  Compniii/,^  it  was 
held  thatapolivy  upon  premises  priviU'i;ei'  for  a  prinlinii-oHice,  upon  its  bciii^ 
sliowii  that  the  use  of  camptienc  was  necessary  in  couducliii;^  the  busiuess, 
jmplii  d  an  assent  by  the  insurer  to  its  bcini?  kept  upon  tin;  premises  for  such 
use,  alLiioU!:;!!  the  iestri<;tiou  to  its  bijin;^  kept  upon  tiie  pn-mises  was  similar  to 
that  as  to  s|)irils  of  turpentine  and  gunpowder  in  the  i)resent  case,  and  that  so 
ki'('p'm'4  and  usiii;x  it  did  n(it  a.'oid  the  nuiicy.  In  Ifdrpcr  \  Cilij  lasiimnce 
Company,'  a  simihir  niie  was  not  only  held,  but  a  majority  ui  the  court  went 
furiher,  and  held  t'lat  alt,hoUL!;li  the  jiolicy  contained  a  pi'iulcd  clause  (!xempting 
till'  insurer  li'oni  damajje  for  loss  sustained  from  eamphi'iie  kept  ni)ou  the 
premises  for  use,  yet  that  this  exemption  did  not  apply  to  a  loss  from  lire  caused 
liy  ii;ailiii,^eaiiii)h.;iu;  so  kept,  accideiilally,  by  a  Ii:;lit,(.'il  in.itcli.  It  is  not  nece>.-.ary 
to  ,:;o  Loany  such  exlent  in  the  present  case.  We  liave  seen  thatintlif  present  case 
the  policy,  properly  construed,  covered  iimipowderand  s])irits  of  tin|)eutine;  and 
uhen  these  articles  are  insured,  a  printed  cianse  prohibitiii!;;  their  bein:.?  kr^,\  is 
pliiinly  ropu.;;'nant  to  the  written  clause  insuring  them;  and,  by  the  authority  of 
the  eases  above  cited,  the  printed  clause  must  be  i;overned  by  the  written.  Tlio 
policy  was,  therefore,  not  void  at  the  time  of  tlie  lire  by  reason  of  keepin.u;  tlie 
.spirits  of  turpeiUine  and  Miunpowder.  It  cannot  be  held  tiiat  tlic  effect  of  the 
piiiittd  clause  in  the  prr^ii^nt  case  is  to  except  si)irits  of  turpentine  and  ?4im- 
powder  from  the  general  description  of  the  property  insured,  without  overruling 
Hiirpcr  V.  A'baaij  Lisiirnncc.  Cutiipaiu/  and  Jf<irpi<r  v.  Cil;/  Insurnncp,  Gonipniii/.' 
Till!  insurer  is  presiuned  to  have  known  what  articles  were  usually  k(!pt  in 
country  stores,  and,  con.-e(iuently,  that  the  policy  covered  the  powdir  and 
turi)eiitine." 

A  jjoliey  insuring  all  the  articles  consLituting  the  stock  of  a  pork-house,  and 
all  articles  conLiiiied  within  iiie  buiidiiig  tlescribed,  and  ;ippuilenant  thereto, 
covers  —  such  lieiug  the  usage  of  the  pork-packing  business — all  the  properly 
within  the  b.tildiiig,  without  regard  to  tlie  particular  owuersliip,  or  any  part  ol  it 
Intended  to  be  insured.* 


liilitil' 


m 


§  II',).  Increase  of  Risk.  —  In  il(;tei  iniiiiug  whether  or  not  there  has  been  ;in 
increase  of  risk,  it  is  n  Mwssary  to  ascertain  what  the  partiiis  must  be  presumed 


1  17  \.  V.l:)!. 
''.ii  N.  Y.  Ill,  (tute,  \i.  ir<: 
Ibid. 


*  .Ktiia  Ins.  (Jo.  f.  Jackson,  lii  15.  .Mon.JU; 
■Jack.- on  ,-.  .Kin.i  ln^.  (;o..lG  13.  .M>mi.  ::ij. 


it 


'li 


l\  .Ml  -  ; 


262 


IN    DIFFKRENT   RELATIONS   AND   OCCUPATIONS. 


Fire  Insurance. 


11 'i  M 


to  have  contemplated  when  the  insurance  was  made,  and  this  involves  a  con- 
sideration of  the  usages  and  incidents  of  the  risk;  because,  if  the  clianu'c  wa-i 
one  v/arranted  by  the  usages  or  usual  incidents  of  the  risk,  although  it  in  liut 
increased  the  risk,  it  does  not  come  within  the  prohibition,  because  it  is  pre- 
sumed to  have  been  contemplated  by  the  parties.  This  rule  is  in  tliesc  words 
well  and  succinctly  stated  by  Mr.  Woon: '  "Generally,  it  may  be  said  thai  any 
alteration  or  change  in  the  risk  made  subsequent  to  the  insurance,  and  whidi 
has  the  effect  of  materially  increasing  the  risk,  will  avoid  the  policy."^  iJut  i 
policy  on  a  dwelling-house,  unoccupied  wlienthe  policy  was  issued,  would  not  lio 
Invalidated  by  its  subsequent  occupancy  and  setting  up  therein  stoves  and  oth  t 
appliances  usually  eniployed  to  heat  the  building,  nor  by  using  light,  «nU-.-,s 
expressly  prohibited  by  the  policy,  because  those  acts  are  customary  in  the  use 
oi  a  dwelling-house.''  So  of  ordinary  repairs  to  a  l)nil(!ing.*  A  study  of  a  few 
leading  cases  will  make  clear  the  extent  of  usage  in  (pialifying  the  general  rule 
as  to  alterations  in  tire  insurance,  fn  Dubson  v.  Sotheby,^  which  came  before 
Lord  Tkntkkokn,  C.  J.,  in  1827,  the  policy  insured  buildings  "  in  which  no  tire 
is  kept,  and  no  lia/.ardous  goods  are  deposited."  The  buildings  requiring  tarring, 
a  fire  was  lighted  therein,  and  a  tar-barrel  brought  into  the  building,  and  in  the 
absence  of  the  plaintiff's  servants,  and  by  liis  negligence,  the  tar  boiled  over, 
took  fire,  and  destroyed  the  premises.  It  was  contended  for  the  insurer  tliat 
the  plaintiff  could  not  recover,  "  because  the  lighting  a  (Ire  within  the  building 
was  a  contravention  of  the  terms  of  the  policy,  which  required  that  no  fire 
should  be  kept  in  the  buildings;  anl  that  the  tar-barrel  came  under  the  doscTip- 
tlon  of  hazardous  goods,  and,  therefore,  that  l)ringing  it  within  the  itrcniiseH 
was  a  breach  of  the  policy."  But  Lord  Tkn tkkdkn,  C.  J.,  ordered  jud-iuoiit 
for  the  amount  of  the  policy,  saying:  "  Nor  do  I  tliink  that  the  circumsiancc.-i 
relied  on  furnish  any  answer  to  the  action.  If  the  company  intended  to  stipi; 
late  not  merely  that  no  fire  should  habitually  be  kept  on  the  premises,  but  that 
none  should  ever  be  introduced  ujion  them,  they  might  have  expressed  them- 
selves to  that  effect;  and  the  same  remark  applies  to  the  case  of  lia//inloiis 
goods  also.  In  the  absence  of  any  such  stipulation,  I  think  that  the  condition 
must  be  understood  as  forbidding  only  the  habitual  use  of  tire  or  the  ordinary 
deposit  of  hazardous  goods,  not  their  occasional  introduction,  as  in  this  ea>(', 
for  a  temporary  purpose  connected  with  tlie  occupation  of  the  premises.  The 
common  repairs  of  a  building  necessarily  retpi ire  tlie  introduction  of  fire  npi  ,i 
the  premises,  and  one  of  the  great  objects  of  insuring  is  .security  against  the 
negligence  of  servants  and  workmen."  In  l.'Ulings  v.  TollaMi  (Umiitti  MuMmI 
l-^rp  Tmurance  Company,'^  the  policy  insured  two  barns,  and  coniaineii  Mie  f  1- 


1  Wood  on  Ins..  § '.':i8. 

-  WoMil  i>n  Ins.,  §'2'J(i;  .lonos  v.  Fi^eninu's 
Knnd  Ins.  Oo.,  ."il  X.  V.  :!ls;  , Jones  r.  >'aiui- 
facHir(M-.s'    Ins.    C!o.,  S   Cusli.   SJ;   (Mark    t\ 
iManurae.tnrei-s'  Ins.  (,"(>.,  '1  Woodb.  *,  M.  47i; 
AlIiMi  r.  Insurance  Co.,  2  Md.    Ill;  Hillings 
r.  'Pol land,  etc.,  Ins.(;(i.,'20(*iinn.  ll'.'.t;  .Ictrer 
.son  In.s.  Co.  v.  Colhcal,;  Wend.  Ti;  Williunvs 
r.  People's  Ins.  (;o.,  r>:  N.  Y.  'ill. 
WdoiI  (in  Ins.,  §  -iM. 
Kiaiikliu   l''iie   his.  Vit.  v.  fMiicago    leo 


(!i)..;W  Md.  102;  Itann  v.  Iloiiie  liis.  {'o.,i}J 
N.  V.  :;h1\  I'adelfcn-d  v.  I'roviiUoico,  uk., 
Ins.  (;o.,;{  It.  I.  lOi;  S.anford  ;•  Meeliiinics', 
etc.,  Ins,  Co.,  12  (Jnsli.  .">H  ;  lloldikis.s  cd'er- 
niunia  Ins.  Co.,  H  Ilnn,  '.10;  (iranl  r.  Ilnvvaid 
Ins.  Co.,,-!  inn,  10;  O'Niel  i\  l!utf;ili.  In-  Oo, 
:{  v.  Y.  I'22;  Townscnd  r.  NoilJiWeslorfi 
Ins.  (^ii.,  IS  V.  Y.  I(i8;  .lolly  j.  t;!i;iiiii'ir" 
Kiinltablc  Soo.,  1  Har.  A  (i.  -m. 

■  I  MiMi.  .V  M.  90. 

'  20  Conn.  |:I9. 


■^ 


FIKE   INSUKAXCE. 


•26'6 


m 


Clinii^os  in  I'lciuisos. 


lowiiiu  clause:  "All  the  above  described  barns  arc  used  for  hay,  straw,  Jirain 
iiiithrL'slii'd,  stabling,  and  shelter,  iiicludiug  the  one  used  in  |)art  as  a  barn  and 
in  piirt  as  a  cider  and  thnisliinji  null."  On  the  (!ay  preceding;  the  night  of  the 
tire,  the  plaintiff  had  caused  some  bushels  of  lime  to  be  placed  in  tlie  barn,  to  be 
used  for  rolling  it  in  wlieat  whicli  he  was  about  to  sow.  He  had  also  some  time 
previous  commenced  painting  his  house,  and  in  tlie  barn,  at  the  time  of  tlie  lire, 
liiul  l)eeii  left  a  quantity  of  oil,  lead,  and  mixed  paint.  The  jury  having  found  a 
verditl  f<n"  the  plaintiff,  a  new  trial  was  refused  by  the  Supivme  Court  of  Krrors 
()[  Connecticut.  "The  acts  done  by  the  plaintiff,"  said  Waitk,  J.,  "are  set 
forth  in  the  motion,  so  tl;at  we  can  see  what  tliey  were,  and  whether  they  were  a 
departure  from  the  common  and  ordinary  use  of  sucli  buildings.  We  very  well 
i<iu)W  that  farmers  in  tliis  SUite  are  in  the  habit  of  using  their  barns  for  a 
variety  of  purposes  connected  with  their  agricultural  business  besides  that  of 
>ti)rinL'  their  nay  and  stabling  their  cattle.  Their  barns  are  frequently  used  as  a 
>li('lii  r  for  their  wagons,  ploughs,  sleds,  and  other  farming-implements.  When 
tlu.'  phiinliff  caused  an  insurance  to  be  effected  on  the  buildings  upon  liis  farm, 
it  i-i  not  to  be  presumed  that  he  meant  to  deprive  himself  of  their  common  and 
ordinary  use,  or  that  the  defendants  by  their  policy  intended  any  such  thing. 
.\ik1,  excepting  so  far  as  there  is  an  express  prohibition  in  rehition  to  tlie  use  of 
tliem,  —  as,  in  tlie  keeping  of  ashes,  —  the  understandinsrof  the  parties  uiuiuestion- 
ably  was  tliiit  the  common  and  ordinary  use  of  tliein  was  to  be  continued,  in  the 
smie  iiiMuner  as  if  the  policy  had  never  been  executed.  *  *  *  tIk;  plaintiff 
prepared  and  left  in  it  the  steep  for  his  seed-wheat,  and  stored  in  it  the  paints 
wliieh  he  was  using  for  painting  his  house.  We  diseour  nothing  in  these  acts 
more  than  wliat  is  usual  anil  common  among  farmers."  In  yVasliin'jton  Fire 
Iiisunma'  Compamj  v.  Duvisuiif^  the  policy  covered  a  "  Iwo-story  brick  builiiing 
iiseii  as  a  suli)liurie-acid  factory."  The  policy  contained  a  stipulation  that  any 
alteration  or  change  in  the  risk,  increasing  tiie  hazard,  should  invalidate  the 
insiiranee.  The  assured  subsequently  erected  ashed  between  the  two  buildings, 
for  the  purpose  of  protecting  the  machinery  and  api>aratus  employed  in  the 
liiiiUliiig  for  the  purposes  specified.  The  insurer  defended  against  a  loss  upon 
the  ground  that  the  shed  increased  the  risk,  and  was  a  breach  of  the  conditions. 
Hut  the  Court  of  Appeals  of  Maryland  held  that  even  though  the  risk  was 
tlierehy  increased,  yet  if  the  erection  of  the  shed  was  necessary  and  usual  for 
tiie  protection  of  the  machinery  and  apparatus,  it  would  uot  affect  the  liability 
of  the  insurer. 


fill 


n 


i  \'M.  Chanere3  la  adjoininer  Premises.  —  It  is  settled  that,  unless  specially 
provided  for  in  the  policy,  the  assured  is  not  bound  to  inform  the  insurer  ol  any 
diiuiges  in  adjoining  premises,  however  much  the  risk  may  be  thereby  enhanced. 
Hy  not  making  this  a  condition  of  the  policy,  the  insurer  accepts  all  the  risk 
incident  to  such  changes.'*  So,  in  Utebbins  v.  Gloha  Insurance  Company,^  where 
the  policy  contained  no  such  condition,  and  evidence  was  offered,  and  rejected  by 
the  trial  court,  that  by  a  usage  at  New  York  (the  contract  being  made  in  New 
Vork,  but  the  property  being  situated  in  Mobile),  upon  the  occurring  of  any 


'  :iO  M(l.  91. 

■'  Wood  on  Iii8.,§  117;  Miller  v.  Western 
till  mors',  utc,  Iks.  Co.,  1  Haudy,  JOB;  Ciatea 


V.  MiuliBon   ('ounty  Ina.  Co.,  5   N.  V.   tU'J; 
Utebbiiis  V.  (Jlobo  liia.  C'o.,'i  Hall,  6:i2. 
■'  2  Hull,  OSi. 


2i)4 


IN    UIFKKRENT    RKLATIONS    AND    OCCUPATlOX.s. 


Fire  Ins'  ra'ice. 


;? 


circumstance  whereby  the  ri.sit  was  incniascd  by  Iho  act  of  tho  assnnd  afir^r  the 
effecting  of  tlie  insurance,  notice  liicreof  was  to  be  given  to  the  insurcis,  so  tuat 
they  uii<;ht  have  tlie  option  of  contiiiuini:  the  policy  or  unnullinc  it,  on  anpiai  tlie 
rulinic  was  alflrmed.  Tho  decision  of  tlic  liiv.iit>r  court  did  not  rest  alioujcthcr 
upon  its  beinj?  a  usu2;e  local  to  Now  Yorl<,  but  upon  the  ;;round  tliat  "  if  ii  wire 
a  general  nsai^o,  it  could  not  be  given  in  evidonco  to  alter  the  legal  operation  auil 
effect  of  the  policy." 


If' 


■(  i: 


§  121.  Amount  of  Loss.  —  Where  there  is  no  direct  evidence  as  to  tho  amount 
of  loss  which  has  been  sustained  in  a  particular  case,  ovidonco  may  bo  'x'wvn  of  the 
amount  of  stock  which,  by  tho  ixouoral  course  of  the  same  trade,  tho  plaiiii  ilY  would 
be  likely  to  have  had  on  hand  at  tho  time  of  tlu;  tiro.  Thus,  in  a  suit  on  a  policy 
of  iusurance  on  a  stock  of  groceries  iu  a  rcitail  store,  the  plaintiffs  tesijiicd  that 
their  sales  during  the  year  preceding  the  fire  were  about  §120,000,  and  ihai  the 
goods  in  the  store  on  the  day  of  the  loss  were  worth  at  their  cost  value  S(;,"),iiiio. 
It  was  held  in  tiio  Supreme  Court  of  tho  United  Staters  that  tho  teslinioiiy  ot  wit- 
nesses living  in  llio  same  town  and  engaged  iu  the  same  business  was  comiiricnt 
to  show  that  grocery  mercliauts  in  that  town,  for  tlio  six  y  -s  prior  to  tlie  lire, 
had  not  had  on  hand  at  any  one  time  more  than  oue-llfth  of  tlunr  annual  lu'uie- 
gate  sales;  that  this  was  the  case;  on  tlie  day  the  fire  occurred,  and  that  ih'i-e- 
fore,  by  (lie  general  course  of  trade  in  tiiat  i)rancl>  of  business  in  the  town,  the 
plaint  ilf's  loss  (;oul('.  not  have  "xceeded  .$24,000.' 

§122.  Payment  of  Losses  —  Mutual  Companies.  —  Wlioro  a  flro-iii<iiiMi;f<' 
coiniiany  agreed  in  its  policy  tliai  tiu^ir  directors  should  "settle  an!  pay  lo  the 
assiued  all  losses  within  throe  mouths  after  notice  shall  have  bi''  n  i^ivcn  a< 
and  that  the  payment  of  the  lns>  ascertained  should  be  male  wilhiii 


afor( 


aid 


the  time  pr(!sei'ibed  by  the  <;liaiu:r,  wiilioui  ilediielion  from  the  sum  derrc  •  l  hy 
the  ;'.djus;iiient,"  proot  of  a  usage  on  the  part  ni  tho  eouipauy,  iu  ca^i'  (>f  a  lo'.il 
loss,  to  retain  of  tho  amount  of  the  asci  riaiiied  loss  two  per  cent  |",;r  "iion!!!  mi 
the  l)ala!ice  of  the  premium-iiofe,  from  tlio  date  of  tlie  last  as 


uiilii  the  exiiiration  of  the  term  of  the  policy,  was  rcjiujteil 


e-..-illellt  lI|Hill  It 

'I'lu!  o!)icct  ani! 


effect  of  the  proof  offere<l  ol   ill' 


iu  this  case,"  said  Wi'ous,  .1. 


plainly  to  vary  and  limit  the  plain  and  imei|uivocal  terms  of  tlie  policy,  aiil  I'l 
coiilri)l  nd  limit  their  construct  on  ati'l  K  ^al  effect.  To  gi\ellu'  e\  iihnc' i>'' 
the  nsa^o  the  effect  claimed  tor  it,  would  be  to  allow  the  exact,  coiuerse  of  ih- 


true  and  well-settled  rule  of  law  tinon  this  siibj 


to  preva: 


It  WtUll 


hold  that  while  the  contract,  in  express  and  iinmist  ikablo  lorms,  provid  -  Ihit 
the  whole  loss  shall  be  aseeriained  and  p.iid  lo  the  as-iired,  the  iisaiie  slrdl  c'ln- 

1  of 
to 


trol  tl'.e  express  teriiis,  and  uive  Hum  the  etfuct  of  a  com 'act  for  the  [> '.yiitfii 
a  'i«m  less  than  tho  whole  loss  sns'tiined.     It  would  be  to  allow  the  ii 


control  ;iu  express  written  eoiiMait,  am 


to  limit  its  terms  and  effect;  \. 


lik  il  i>^ 


well  settled,  in  accordance  \vU.h  soimil  reason,  too,  that  a  usago  shall  be  reuaiili  1 
as  waived  by  the  ex|)ress  terms  of  a  contract,  when  they  are  in  coiillict  with  cac'i 
other."'''  Although  a  miitiial  company  may  have  been  in  the  habit  of  sum  nkr- 
iug  the  notes  of  Its  members  ami  cam  oiling  their  policies  upon  the  liaiipt  ii,;i'- 


liisuraiiei!  Co.  v.  Wtiulv,  Ii  Wall.4:5S. 


^'vam-c,(»t   M.irhiiiL' 


('  1.  V.  fuitinliif 


N.  ii 


if"' ':  ■ 


i.iFK    INSLKANCE. 


2H5 


Paviiitiit  of  Pri'iniiiMi> 


and  i>;iyirn'nt  of  Iox-jcs,  such  a  pracrtice  cannot  avail  to  contradict  or  vary  tiic 
written  torn)s  of  a  policy  or  prcniinni-uotc' 

§  !l':'..  Reinsurance. —  Kcinsuranct'  is  a  contract  of  indcnmi.'y  tu  tlu;  reassured, 
and  l)inils  the  rcassnrcr  to  pay  to  the  reassured  the  whole  loss  sustained  in 
rrspcct  of  the  sul)iect  insured,  to  the  extent  to  whicli  he  is  reinsurer.'-  Tiiere- 
forc,  it  has  been  hcdd  not  competent  to  limit  a  contract  of  reinsurance  by  proof 
of  ii  II sane  in  tlie  city  of  New  Yuriv  by  which  tlie  reassiirer  paid  tlu;  same  propor- 
tion of  the  eniire  loss  sustained  by  tlie  original  insured,  MiaL  tlie  siun  reinsured 
hereto  tlie  first  in>urance  written  by  the  nins-ired;  thai  is  to  say,  that  if  A. 
w'ito  a  pcdicy  for  .Iji^O.OOO,  and  thru  procure  H.  lo  rein.-ure  him  for  810,000  on 
the  same  ()roperty,  in  the  event  of  a  loss  occurring-  lo  the  amount  of  .$lu,iH)o,  ]i. 
would  be  liahle  to  pay  to  A.  only  $5,000,  instca.',  o!  tlie  !?  10,000  written  in  the 
policy.^  "Tlie  word  'reinsure,'  "  said  Sandkoiu),  .J.,  "has  a  detinite  meauini;;, 
s(!ttk'd  in  lh(.'  law  for  two  centuries  past,  and  havinji  tlie  same  meaiiiiiLr  in  its 
ordinary  and  jiopular  sense.  It  is  cfpially  effective  wiiii  the  word  'iii-ure;' 
and  it  has  been  decided  that  the  word  '  insure '  may  be  usi-1  in  a  ixilicy  of  reiii->ur- 
luicc  with  tlie  saiiu-  force  and  validity.  The  proof  offered  attempts  to  wres;  tlu; 
term  'reinsure'  from  the  establislied  sense,  ami  make  it  correlative  as  iielween 
till'  lirsl  insurer  and  the  reinsurer  wherever  the  former  in-urcs  more  than  the 
liU'cr,  with  I  he  distinct  and  different  contract  of  double  in^uracce.  In  our  view, 
it  >^(iks  to  vary  an  express  aLireement  betwi  en  these  p:).rties,  couched  in  jiiain 
lan.i;ii:ej;e,  having;  an  establislied  le^ral  as  well  as  conveinidual  meaiiiii'^-,  and  we 
arc  cniirely  clear  that  the  testimony  of  usav:e  ousht  ni>t  lo  be  receivi.'d."  So,  in 
an  Kiiizlish  lile-in<urancc  case,  a  majority  oT  tlu;  judi^es  of  the  Qiven's  Heneli  were 
averse  to  alliiwiii;^  the  introduction  of  a  custom,  in  case  ot  reiu.sui'ui(!e,  to  eoii- 
tlnc  the  declaration  as  to  health  to  the  state  ol  the  health  at  tlu;  time  of  \\u> 
oriirinal  insurance.* 


i  i  •  I J 


§  1 'if.  Life  Insurance  —  Payment  of  Premiums  —  Policy. —  In  Ihu/i-r  v. 
Mn^ttiisi'ii  Insiivancc.  Ciniijuiiii/^''  it  ivms  held  to  i)i'  coiiip'^leut,  to  (irove  a  usa;ie  that 
wiicru  there  has  been  a  \erl)al  a;';reeiiient  for  insurance,  ami  the  terms  anfi-ed 
upon  .iiul  entered  on  the  books  of  1  he  company,  the  contraei,  of  iusi"anee  is  con- 
sideivU  as  valid  for  the  insured,  all!ionu:h  the  proiiiium  is  not  paid,  '"an  a  ns:iu;e 
on  t!u'  part  of  life-insurauee  eoiiip;ini(!s  to  alluw  thirty  days  i^race  ior  non- 
pnyi'.iciil  ol  pi'emiums  due,  where  l)v  its  term-  the  policy  is  to  be  t'orleiled  If  the 
preiiminis  an;  not  paid  on  the'  very  ilav  ni'iitioiied  —  can  a  iisaj-  •  of  tnis  character 
he  ndmitied  in  eviileuce  'o  >- ive  'i  forli'i'nre  !iv  the  term^  oi  the  pidicy?  In 
Geo; Ilia,  it  has  b""U  |p'''l  t'lit,  it  cuinot;"  in  Pennsylvania,  i;iai  it  can.'  Tlu 
riiliiv.:  in  \\v'  VV.U)v  case  is  eertainlv  nior.;  in  accord  with  the  I'liles  re'^  irdiii^r  the 


'  MiiUiMl   Kire  liis.  Co.  r.   !,;incl,  ■>\   N.  II. 
4'i-. 

-  '21'iu-konIns.,§§5'.)5,.V.Hi;  1  I'll,  on  Ins.,  §§ 
'>^,"4'.l;:',  l\eiit'.-  Coimii.  :;',»;  lla.^lii'  r.  Do  I'ey 
feU'r,;n 'tunes,  lilO;  Merry  r.  I'riiiee.  J  Ma--, 
17(1;  New  Voik,  etc.,  Ins.  Co.  r.  New  VorU 
Kire  Ilia.  Co.,  17  Wend.  ;!5'.l;  New  York,  eu;.. 
Ins,  (;o.  r,  I'roleelion  Ins.  Co.,  1  Siory,  4,is, 

'  lliiiu;  r.  Miilual  Safet',-  In-.  Co.,  1  saiiiif 


l:!7;  Mnliial  '■afeiy  Ins.  Co.  r.  Hone. '2  .\.  V. 

<  Ko-li':'  I'.  McMidv  i.ife  ,\hsiii',  Co.,;)  Kl.  ,v 
IJl.  IS. 

■  ' ;  Aiii'ii.  :m. 

f'  .Miitual    tliMielll    l.lfi^  Ins.  (;,).  v.  lliir,  s 

■  ilrlu.i-/.  flilla'K'l|ilii:i  l,j(o  llisi.  Co..   lil 
I'a.  SI    1(17. 


I     ■■)i 


■4i 


2»Jt> 


IN    DIFFERENT    RELATIONS   AND    OCCUPATIONS. 


I  ^ 


Lif(!  lll^urance. 


■i  :hM 


U; 


li 


t  ^  ii 


"tit  ■511^ 


iidinisslbility  of  evidence  of  custom  and  usage.  The  only  reason  giviMi  l)v  the 
Georgia  court  for  rejecting  tlie  evidence  i.s  tlmt  there  ia  no  amijiguity  in  Uic  <  'm- 
tract,  and  tliat  "  usage  is  provable  only  where  there  is  ambiguity  in  tlic  jjolit  y." 
It  is,  perhaps,  sufficient  to  say  that  the  case  of  ambiguity  in  the  instnuiniit  is 
only  one  of  the  many  reasons  for  permitting  tlie  introduction  of  such  evidrin  ^  to 
explain,  or  sometimes  to  change  its  apparent  meaning,  which  have  been  rcco;,'- 
nized  by  tlie  courts.  Another,  and  a  very  prominent  instance  in  the  Iiook.s,  is 
where  an  incident  to  the  contract  is  to  be  proved:  something  which  the  pfirlies 
to  it  did  not  reduce  to  writing,  but  which  they  understood  a.i  attacliing  to  it  in 
accordance  with  the  usages  of  the  trade  concerning  which  they  contracted. 
Now,  it  is  oi)vious  that  in  such  a  contract  there  may  be  on  its  face  no  ani!)i;i;uity 
whatever.  Tin  refore,  the  reasons  given  by  the  Supreme  Court  of  Penn;i\lvani;i, 
and  the  rule  adopted  by  it  in  the  case  last  cited,  seem  valid  and  proper  '<  n 
might  have  l)een  a  difficult  thing,"  said  Thompson,  C.  J.,  "to  prove  siu:h  i 
custom,  but  tliat  was  not  a  good  ground  on  which  to  refuse  the  offer.  It  was 
the  plaintiff's  riglit  to  prove  ii,  if  she  could;  and  wo  are  to  taI<o  it,  for  (lie  pur- 
pose of  tins  investigation,  that  she  could  have  proved  it.  Would  it  have  hci  n 
etlicient  proof  for  any  purpose,  had  it  been  admitted?  We  tliinlv  that  it  would, 
although  generally  a  contract  is  the  law  of  the  transaction  in  which  it  exists,  ami 
is  not  to  be  affected  by  anything  but  its  terms,  —  that  is  to  say,  it  cannoi  lie 
abridged  or  enlarged  in  itself  by  anything  else,  —  yet  there  are  many  cases  in 
which  its  execution  is  materially  curtailed  by  usage  or  custom.  Days  of  ^raic 
on  commercial  paper  are  a  familiar  instance.  By  a  custom  grown  into  law, 
it  is  not  due  until  the  expiration  of  three  days  after  it  pur|)oii->  to  be;  or,  nitlicr, 
the  remedy  is  suspended  against  parties  for  that  period.  So,  in  agriculture, 
although  the  lease  may  llx  the  duration  of  the  terra  and  wlu-ii  it  is  to  end,  yd 
tlie  tenant,  by  custom,  has  rights  in  the  premises  after  it  is  ended:  to  harvest 
and  carry  away  his  share  of  what  the  custom  calls  the  waygoing  crop.  This  cus- 
tom seems  to  do  more  than  curtail  the  remedy;  it  in  fact  enlarges  the  contract. 
But  no  custom  is  more  perfectly  established,  or  more  thorouglily  stands  on  a 
solid  foundation  as  law.  There  are  customs  which  interpret  marine  contracls 
to  the  extent  of  apparent  changes  in  them.  In  Peake's  Nisi  Prius,'  in  tlie  ease 
of  Chaurand  v.  Angerstein,  it  was  shown  that,  by  custom,  a  stipulation  in  a  poliey 
of  insurance  tliat  a  vessel  was  to  sail  in  October  meant  that  she  was  to  sail  be- 
tween the  2'>th  of  the  month  and  the  1st  or  2d  of  Novembciv  While  a  custoiii, 
as  a  general  rule,  may  not  be  lieard  to  affect  the  terms  oi  a  statute  or  contract  ii> 
the  extent  of  enlarging  or  abridging  the  force  of  it,  yet  it  may  interpret  eillier." 
The  principle  on  which  this  case  rests  is  approved  in  other  cases."  iJut  this 
exception  could  hardly  be  extended  to  cover  a  case  where  the  paynienl  was 
made  after  the  death  of  the  insured.''  It  has  been  held  in  Illinois  that  wlieie 
tlie  application  fixed  tlie  time  for  the  contract  to  take  effeijl,  a  custcnn  on  the 
part  of  the  company  that  its  policies  should  take  effect  on  a  differenL  day  was 


I  Page  IS. 

«  I'ino  y.  .Meroliaiils-  .Mutual  Inw.  Cn.,  19  I.a. 
An.  214;  IIowoll  i'.  liniulicrbdclior  Ins.  Co., 
44  N.  Y.  '27U;  Itiisu  v.  Mutual,  etc.,  Ins.  Co.,2(i 
Barb.  557 ;  Ituckbee  v.  United  States  Ins.  On., 
lb  Itarb.  541;  Tlionipsun  v.  St.  liOui.s  .Muliial 
Ins.  Co.,  5-2  Mo.  4H9.     And  see  Thonii>..;()M  r. 


Knii'kerboeker  Ins.  Cn.,  »  (;cnt.  L.  .1.  ^"ilil; 
(ieorgja  Masonic,  ote.,  Ins.  Co,  i'.  Wlutinaii, 
.'')■.:  U:..  i\\\\  r.iisby  ,..  .North  Anierieaii  Iii.«. 
Ci>..40Md.  57i;  Hanley  v.  Mfe  A.^sn.,  4  Mo. 
A|>|i.  '2.'i:!. 

'  tJuUi\ai>  1'.  ('ottun  Males  las.  Vm.,  4:1  IiH. 
42J. 


m^'i 


LAM>LOUU    AND    TKNANT. 


267 


Customs  of  thi!  Country. 


not  admissible,  becaiiso  contraiJictinjj;  the  application; '  and  evidonce  that  an 
aut'iit  ficquontiy  waived  a  condition  as  to  payment  is  not  adinissil)le  to  raise  an 
infiTcnce  of  waiver  in  a  particular  easfc,  in  the  absence  of  otlier  proof  tending: 
to  establish  it.' 

j  125.  Other  Cases.  —  In  a  Scotch  case,  it  was  ruled  that  where  the  defence  to 
a  liff-policy  was  that  a  habit  of  drain-drinking  was  concealed  in  the  application, 
it  was  incompetent  to  ask  whether  the  party  was  reputed  a  dram-drinker.  The 
proper  way  was  to  prove  the  number  of  drams  he  took,  and  then  ask  a  medical 
mill  what  effect  they  would  have.''  A  usage  of  a  company  to  require  particular 
proof  of  death  by  the  family  physician  of  the  insured  cannot  bind  the  latter, 
(iiiicss  it  was  known  to  him  when  he  took  the  policy.*  And  it  is  not  competent 
to  show  that  a|)enoii  addicted  to  intoxicating  liquor  is  not  regarded  as  an 
insurable  subject  by  persons  engaged  in  the  business  of  life  insurance.* 


^1 


/  !■ 


'i 


i 


i 


V.  Laxolord  and  Tknamt. 

§  \2C>.  Customs  in  the  Law  of  Landlord  and  Tenant.  —  In  the  relation  of 
taiullord  and  tenant,  the  custom  of  the  country  has  in  England  impi>sed  upon 
Ixitli  obligations  and  duties  which  the  law  has  recognized  and  enforced.  In 
larming  leases,  for  instance,  it  is  usual  for  the  lessee  to  covenant  that  he  will 
manage  his  farm  in  a  husband-like  manner;  but  it  is  settled  that,  in  the  absence 
of  any  such  covenant,  tlie  m(;re  relation  of  landlord  and  tenant  creates  an 
implied  obligation  to  farm  according  to  the  custom  of  the  country ."^  Whether 
tiiu  cutting  of  any  given  wood  is  waste  or  not,  may  be  determined  by  local 
custom.'  Every  agreement  between  landlord  and  tenant  in  respect  to  matters 
on  which  the  writing  is  silent,  is  open  to  explanation  ijy  the  general  usage  and 
custom  of  the  county  or  district  in  which  the  laud  lies.  Thus,  evidence  of  usage 
is  adinissil)le  to  show  to  what  extent,  and  on  wiiat  property  rent  is  c()llec,lil)le.*  In 
Awjhinhau'jh  v.  Cdpprnhflffcr^*  t\\fi  lease  stipulated  that  the  tenant  "shall  culti- 
vate and  farm  said  land  in  a  workman-like  manner.  He  shall  |)iit  out  all  the  crops 
in  ijoort  season  and  in  proper  order,  of  such  kind  of  grain  and  in  such  fields  as 
tlio  landlord  shall  designate.  He  shall  also  take  off  all  crops  in  proper  season, 
anil  house  the  same  in  proper  order."     In  an  action  by  the  tenant  for  work  and 


'  WiiiiioslKMk  Ins.  Co.  t'.  Ilolzgrafo,  T):!  111. 
sii;. 

■  W'lort  t'.  I'ouglikcup.iie,  etc.,  Iiis.  Co.,  Zl 
N.  v.i;i',i. 

Promoter  Lifo  Ins.  Co.  v.  Barrie,  ft  Murr. 
i;;.-). 

Taylor  I'.  A^Awa  Ins.  Co.,  13  Gray,  4154. 
liawls  f.  AuK'ricau,  etc.,  In».  Co.,  27  N. 
V.  'jsi. 

I'liwlpy  V.  Walker,.') Term  Rep.  ;m ;  Legli 
I'.  Hewitt, 4  Kast,  1,')4  ;  Aiigerstcin  v.  Haiulson, 
H'i-(imi).  M.  &  li.  7S',»;  Karl  of  Kalnioiith  c. 
I'liDin.i-;,  1  (^rnmii.&.M.  s'.i;  llallitax  y.  (Jliani- 
lifi.-,4  .Muo.  .t  \V.  m-i;  Martin  i\  Uilham,  7  Ad. 
*  v..  r.tfl;  liickford  v.  Parson,  .'>  C.  B.  :>-20; 
Wilkinsf.  Wood,  17  I,.  J.  (tj.  I$.);(l(t;  Sntloil 
f-  IViiiiili.,  \i  Mcu.  .fc  W.rrl ;  Statfonl  v.  (iard- 


nor,  L.  It.  7  C.  P.  W2;  (JallaRlior  v.  Ship- 
ley, 24  M(i.  4 IS;  Harrington  f.  Justice,  3 
Clark  (I'a.),  r.Ol ;  Willey  r.  Conner,  44  Vt.  (iS; 
Smithwiek  v.  Kllison.  -i  Irod.  L.  ;t'>H;  Danieln 
V.  Pond,  '21  Pick.  307;  Lewis  r.  Lyman,  22 
Pick.  4;i7;  I.assell  v.  Ueed,  <i  (ireenl.  til. 

■  TaylurVs  I,.  A  T.,  §  :i.')0;  lluuoyvvood  o. 
noneywood,  L.  K.  18  Kcj.  ;;()6. 

'  Manguni  v.  Farrington,  1  Daly,  2.36.  A 
stipulation  in  a  farming  lease  that  the  crop, 
wlicn  harvested,  shall  be  divided  HC(;ording 
to  the  custom  prevailing  umung  the  farmera 
111  llic  neighijorhuod  in  whicii  the  land  is 
situated,  is  valid.  Clciu  o.  Martin,  34  Ind. 
.■$11. 

J  5.>  Pa.  St.  :W7. 


m 


;'  '^ 


1 

1    ' 

i 


I: 


;Hv     . 


2tJb 


IN    DIFFKKKNT    UKLATIONS    AND     OCCL'l'ATlONS. 


Lrndloid  and  Tciiiint. 


labor,  it  was  held  proper  to  show  that  by  the  usual  course  of  husbandry  in  \Ui; 
vicinity,  a  tenant  about  to  take  possession  in  the  next  sprini;,  or  to  lioM  ovi  r, 
should  prepare  his  corn-*j:round  in  the  precedin'^  fall  or  winter,  wli.  ni  vcr 
possible,  and  that  lie  could  spread  on  such  corn-'^roiuul  all  the  I'lTiilizcrs 
which  the  landlord  mi^ht  furnish  for  that  purpose;,  wii'ioiit  any  stipulation  iu 
the  lease,  and  without  entitling  hira  to  charge  the  landlord  therefor. 


§  127.  As  to  the  "Waygoingr"  Crop. — At  the  common  law,  "  if  a  tenant  for 
years,  knowing  the  end  of  his  term,  doth  sow  the  land,  and  his  term  i  ii.lciii 
before  his  crop  is  iipe,  the  lessor,  or  lu!  in  inversion,  shall  iiave  tiie  corn,  l)(i;iii<f 
the  lessee  knew  tlie  certainty  of  his  term  and  when  it  woiiiii  end."  '  In  Ww  Iciut- 
ing  case  of  Wiyjlesworth  v.  Dallison,'^  a  custom  of  the  country  to  yive  ihu  tiMidU 
the  waygoing  cro[)  was  sustained.''  A  similar  custom  has  been  recogni/.oil  in 
America.  Tlic  custOiii  of  tic  country  allowing  to  the  tenant  tlie  "  wavijoiii.: 
crop" — that  is,  tlie  crop  sown  L.y  the  tenant  during  the  hi.-c,  but  coming  to 
maturity  after  its  expiration — has  been  established  in  Penusylvania.  Tiic  na- 
8onal)!<'ncss  of  a  cusioiii  wliicli  would  relieve  a  tenant  from  paying  for  laml 
without  having  the  btiielit  of  the  crop  prevailed  iii)on  CJliief  Justice  MrKi;\N, 
before  the  decision  in  Wiyjlrt^wortk  v.  Dallison  was  known  in  this  coum it,  iiiui 
was  rei omiizcd  by  the  Supreme  Court  in  almost  the  same  wi)rds  as  were  ii^cii  !iy 
Loi'd  MA.NsiaKLU  in  that  case.*    in  Delaware  it  is  established  that  the  waM^niui: 


:ii 


>  Co.  Lit.,v<>S. 

-  1  Doug.  JOT,  aii!(t,  \i.  109. 

•i  Uowi-L.iii  /•.  Civen,  Ifi  K.ist,  71;  (Jiifntlis 
V.  i'uleston,  l:i  Mee.  &  W.  :ir)S;  Holding  r. 
I'ii^ott,  7  r>iii(i.  41)5;  lioavan  v.  I)(;l4liay,  1  II. 
Hhii'ls.  5;  Calih colt  r.  SmyUiics,  7  Cur.  &  V. 
lOS. 

'  suiltz  r.  l)icl.:i>y,  5  );ini).2S5.  Tiljrhinan, 
C.  J.:  "  U  ir'ii  the  cti.stoiii  of  a  coiuitry  or 
of  a  paitiniiar  puici;  is  es-tablUlicil,  it  may 
»>i\lcr  into  llii!  body  of  a  coulracl  \.iihoiU 
bcioi^  iti.A'i It'll.  I'.olti  paitio.-  arc  Mi|)|)o.-ed 
to  know  it  ami  to  bi;  boipid  by  it,  unless  pro- 
vision to  tlu!  contrary  is  made  in  the  con 
tract.  It  Jijipoars  to  me,  therefore,  th.'it  it 
wan  proper  to  admit  lividonce  of  the  custom 
concorniii::-  the  \vi'.y,:.;()in();  cro|).  1  uiidei- 
Btand  ilia!  Iliis  chstom  h.id  been  vccogiii/od 
by  ;•  (Icc-isioii  at  A'/.s/  I'liiis  prior  to  P.iis  iV-Iioii, 
ni:d  tl.ai  thi  law  b.id  bijoo  bold  as  it  is  laid 
down  111  tlH!  oaso  of  Wi;,'gli's\vortii  r.  Dalli- 
(ion.  Tlicro  iho  cu-lom  was  liiiiiled  to  a 
particular  part  of  ?;ii:.;l:ind.  Willi  us  it  is 
8lil>|;osfd  to  extend  tliruugliout  the  Slate. 
In  the  n.'itare  of  tlit;  thing,  it  is  rnasonablo 
that  wlitrc  a  lease'  coiniiu'iiccs  in  the  •■^luiiig 
of  one  yea'  and  (mmU  in  the  snriiig  of  ainilher, 
thi!  tenant  should  oa^ollo'  crop  of  winter 
grain  sown  by  niin  the  .Pitiinin  before  the 
lease  oxpired,  otherwise  ho  pays  for  the 
land  one  wliolc  year  witliout  having  the 
bciiell!   of   a  winter  evoo.      If   the    parties 


intend  otherwise,  it  is  easy  to  contrnl  the 
cusloiii  by  a;i  express  piovi'-ioii  in  tin' 
lease."  >(  ales,  .J.,  said  tli(!  (jiie-lioii  IimI 
been  settled  by  the  ease  of  DiTedorirer  v 
.Jones,  decided  in  \'&i,  ami  in  wliicli  he  wii.'^ 
oieoiin-ul.  '"rii  'agli  I  wa.*  di-.-.ilisliod  with 
the  opinion  then  delivered,"  he  ad  .'s,  "  I 
have  never  heard  the  doctrine  oi!r  •ieiH'il 
since.  I  havi!  adverted  to  this  ca-e  in  ('a'  -"ii 
V.  IJlai'i'r,  '.!  liinn.  187.  Such  eii-toiii  is  s;ih1 
ill  oui' books  not  to  alter  or  (ioiuradn't  tlu' 
agreianeiit  i:#  he  lease,  but  only  to  srUiicraii'l 
a  i'li;lit  whicti  is  con-ecpieii!'  '1  to  the  takiii  r. 
although  not  inentionod  therein  There  r  i 
be  no  doubt,  if  the  tenant  was  resivicti'a  ^n 
the  terms  of  his  le,a-,ii  from  reiiiiv  nip:  ii  - 
grain  afier  his  iii.n'  was  e.\pired,  ill..;  Iiii 
would  be  bound  l)y  bis  ooiilract;  a.i!  1 
.•ipprcheiid  the  pr'vili'ij:i'  of  the  tetiiiil,  ui 
geiiei'jil,  is  conlliied  to  :i  reiisoiiahle  i|ii;iiil!iy 
of  tlie  lands  in  pro|iortioii  to  the  ic-iiliii' 
thereof,  according  t'»  the  coiir-i!  ;iiid  ii>;it,'-' 
of  husbandry  in  the  same  p;iils  of  the  c.mn 
try.  The  privilege  is  founded  on  tin'  li:-'i"-l 
e<piity,  and  conduces  to  the  extension  oJ 
agriculture."  In  liirson  v.  Ula/.er, 'J  liinu. 
4S7,  he  had  said:  "1  well  lec.  >Ucct  lliit  "ii 
the  trial  ol'  Dill'ed  n'tr.ir  i.\  .lones.  before  all 
the  judges  of  this  court  at  .Vi'.ii  /'ntis.  ia  llii- 
place,  we  urged  on  the  part  of  the  phdniiil'' 
the  estalili-hud  eoiiiinon-l;iw  (l(ictiii;if  iliit 
the  landlord,  alter  the  end  of  a.  tLnii  l<r 


LANDLORD    AND    TKNANT. 


269 


Customs  of  the  Coimtrv. 


tenant  is  entitled,  by  tlie  custom  of  tlic  State,  to  the  wliciit  crop;  not  vSo,  however, 
as  to  the  oat  crop,'  though  it  seems  that  an  incomiii;;  tenant  may  enter  to  till 
liis  ice-house,  "  necessity  and  custom  requiring  it,  •  *  *  as  much  as  that  the 
w:iyi;oini;  tenant  shall  return  to  reap  his  wheat  crop."  '  Wigyli'sworth  v.  Da!- 
lifoii  luis  l)een  followed  in  New  Jersey,'  Ohio,*  and  Maryland;''  but  not  in 
Virginia,*  nor  in  Canada.' 


ii!i 


§128.  Other  Customs.  —  A  custom  that  a  tenant  may  leave  his  waynoini; 
crop  in  tlie  barn  of  the  farm  after  he  has  quitted  the  premises,  is  sood;  *  and  a 
iisiim!  for  the  offi:?oin<?  tenant  of  a  farm  in  a  particular  district  to  bestow  his 
work,  labor,  and  expense  in  manurlna:,  tilling,  fallowing,  and  sowing,  according 
to  I  lie  course  of  huslnuulry,  is  valid  and  reasonable.'-*  Where  a  custom  to  pay 
for  fiillows  was  proved,  it  was  held  that  there  was  tluM'ofore  an  implied  con- 
tract on  the  part  of  the  landlord  that,  if  there  be  no  incoming  tenant,  lie  will 
pay  the  outgoing  tenant  according  to  tlie  custom.'"  In  a  very  recent  Englisii 
case  (Juno  25,  1880),  a  motion  was  made  in  vacation  to  restrain  an  outgoing 
tenant  cf  a  farm  in  Devonsjiirc  from  selling  the  hay  and  straw  off  his  farm. 
It  was  contended  that  he  lield  under  a  lease  proliibiting  tlie  same;  or,  otht-rwise, 
tiiat  lie  licid  as  a  yearly  tenant,  and  was  prevented  i)y  the  custom  of  tlie  country 
from  ".•eiiioving  the  hay  and  straw.  Tlie  tenant  liad  been  offered  a  lease,  but  had 
refused  to  execute  the  same,  and  therefore  the  (iiiestion  depended  on  the  custom 
of  the  country.  For  the  defendant,  two  surveyors  and  auctioneers  of  tliis  class 
of  crops  stated  they  knew  of  no  sucli  custom;  but,  for  tlie  plaintiff,  seven  fanners 
stalrd  it  was  a  well-known  custom  wliere  the  property  was  not  lield  und(!r  any 
agivcnicnt.  Tlic  plaiiiliff  offered  to  give  an  undertaking  in  damages  if  tlie 
injunction  were  granted.  Pollock,  J.,  said  it  was  clear  tliat  if  tlie  defendant 
hckl  uiiiler  a  lease,  he  could  not  have  taken  the  hay  and  straw;  but  as  he  did 
not  liold  under  any  agreement,  tlie  (piestion  depended  on  the  custom  of  the 
country.    As  to  sucli  a  custom,  in  Ills  experience,  you  could  always  get  evidence 


yoar-i  for  wliirh  llie  lands  were  leased,  was 
enlitlril  to  tlr,'  exclusive  iiossession,  and 
llKit  il  was  ilie  folly  cif  tlie  tenant  to  luit  in  a 
('roiMvlii(;li  he  i-ould  not  remove  during  the 
continuance  of  tin;  lease.  iJut  we  were  told 
in  McLean,  C.J.,  that  the  tenant  was  justilled 
liy  the  eu-toni  of  the  country  in  what  he  had 
d me,  and  that  the  stficl  eoniinon-law  rule 
iliii  not  a|i|ily  to  the  case.  This  was  iivevioius 
t'l  Un;  publication  of  tlu?  re  port  of  \Vij;f?'U'' 
vvoiih  r.  Dallisou  amoji^sl  us,  wherein  it 
wa^  held  that,  a  cusloni  tliat  tenants  should 
have  the  waygoing  crop,  after  the  exi)ira- 
liiin  of  tlieir  term,  was  good.  1  was  then 
ili--;atisih'd  with  the  decision  of  the  court, 
I'diijideriiig  it  us  an  innovation  on  sellled 
law.  It  ina<le  a  strong  impression  on  my 
mind,  which  was  increased  by  the  circum- 
stance of  Judge  Hryan  copying  tlie  Knglish 
i-ase  fn.iii  tlie  l)ook  (Doug.  lilO,  201),  which 
nnived  some  tune  after,  and  furnishing  me 
with  it  at  the  (Misuing  court."  And  see 
liftni  V.  Rossler,  1   I'enu.   iU;    Iddings  v. 


Nagle,  3  Watts  &  S.  22;  lliggs  i>.  Ilrown,  2 
Seig.  &  R.  14;  Clark  r.  flarvey,  ot  I'a.  .it  112; 
Craig  r.  Dale,  1  Watts  &  S.  'M);  Korsythe 
(>.  I'rice,  S  Watts,  2S2;  Hunter  v.  Jonns  3 
l;re\vs.  ;!70;  Comfort  v.  Duncan,  I  Miles,  229. 

1  Templeman  v.  Biddle,  1  llarr.  (Del.)  .Via. 

i  The  .State  v.  McClay,  1  Harr.  (Del.)  .V20. 

•  Van  Doreii  v.  Kv(M-itt,  2  South.  4fiO; 
(lowell  V.  Schenck,  24  N.  J.  L.  89;  .Society  v. 
Haight,  1  N.  J.  Ki\.  :m. 

I  Foster  V.  Robinson,  (i  Ohio  St.  90. 

•  Dorsey  v.  Kagle,  7  Gill  it  J.  S.'ll. 

■^  Harris  v.  (Jarson,  7  Leigh,  C.t2;  .Mason  i'. 
Moyers,  2  Rob.  (Va.)  600.  And  see  Kollcy  c. 
Todd,  I  W.  Va.  11(7. 

;  Hnrrowes  v.  Gaines,  2  Upper  Canada  y. 
B.  288. 

"  Heavan  v.  Delahay,  I  IL  Black.  6;  Lewis 
••.  Harris,  1  H.  fJJack.  7. 

J  Dalby  v.  Hirst, ;}  J.  B.  Moo.  5GB,  I  Brod. 
A  B.  221. 

•"  Kavlell  t>.  (iaskoin,  7  K\ch.  273. 


n 


270 


IN    DIFFERENT    RELATIONS    ANI>    OCCUPATIONS. 


■IK;'. 


!    '    I     ■   J .'  Til   Is 


'lil. 


Lnndlord  and  Ttmaiit. 


on  both  sides ;  but  what  pressed  with  him  was  the  fact  that  the  defendant  Imd 
had  the  benefit  of  the  hay  and  straw  in  comin-j;  upon  the  farm.  He  tljou.nl.t  Uk 
existence  of  the  custom  sufficiently  proved;  and  as  the  plaintiff  offered  an  uiidt!- 
takin<;  in  damages,  he  (should  grant  tiie  injunction  asked  for  until  the  trial.' 

A  local  custom  requiring  a  lessor  to  cleanse  a  leased  house  before  the  lt;ss((; 
enters  into  possession  of  it,  is  not  binding  on  one  not  having  kuowloilgc  of  it. 
Tiie  right  of  proprietors  of  a  common  stairway  to  the  use  of  the  walls  lo  put  up 
business  signs  of  tenants  exists  by  custom.' 

It  was  early  held  in  South  Carolina  that  a  custom  in  the  city  of  Clmrlcsifin 
which  authorized  the  owner  of  a  lot  of  land,  after  notice  to  the  owner  of  tin 
adjoining  lot,  and  his  refusal  to  join  in  putting  up  a  partition  fence,  to  put  up 
such  fence  at  his  own  expense  and  hold  the  party  refusing  for  one-half  the  cost, 
was  reasonable  and  valid.*  And  a  custom  is  valid  that  when  persons  owiiiii'.: 
adjoining  lots  build  simultaneously  adjoining  houses,  having  a  coinniou  wall 
built  equally  on  cacli  lot,  each  is  bound  to  contribute  to  the  cost  of  the  wal!.^ 

It  is  held  in  Indiana  that  the  rule  that  where  there  is  no  covenant  in  the  lease 
by  which  the  lessor  undertakes  to  repair,  he  is  not  bound  to  do  so,  and  tlic  lessee 
cannot  make  repairs  and  cliarge  the  cost  to  him,*  cannot  bo  altered  by  a  loc^'.l 
custom.'  And  the  general  rule,  on  the  sale  of  property,  that  the  vcnilce  ivlio 
bears  the  expense  of  the  conveyance  shall  prepare  it,*  may  be  altered  by  custom, 
which  may  say,  for  example,  that  on  an  agreement  for  a  lease  the  lessor  shall 
prepare  it  and  the  lessee  pay  for  it.» 


m 


I 


,1  < 


]^ 


■ 


; 


'«» 


§  129.  As  to  Term  of  Tenancy.  — The  custom  of  the  country  has  frequently 
been  resorted  to  for  an  explanation  where  the  question  of  the  time  of  a  holding 
has  been  left  in  doubt."  It  has  been  held  that,  although  the  express  terms  ot  a 
lease  cannot  be  controlled  by  the  custom  of  the  country,  if  the  least;  is  entirely 
silent  as  to  the  time  of  quitting,  evidence  of  the  custom  of  the  country  may  be 
given  to  fix  the  time."  Where  the  holding  was  general  from  '«  Michaelmas,"  thf 
custom  of  the  country  as  to  whether  that  shall  be  deemed  old  or  new  MicluK 
mas  was  held  to  be  admissible  in  evidence."  Evidence  of  the  custom  of  tin 
country  was  held  admissible  for  the  purpose  of  showing  that  a  letting  by  parol 
from  "  Lady-day  "  meant  "  old  Lady-day."  "  In  another  case,  where  the  rent 
was  payable  at  '•  Martinmas,"  the  court  thought  themselves  bound  by  statute  as 
to  when  the  day  came;  '*  and  in  a  Nisi  Priua  case,  Eklk,  C.  J.,  remarked :  "  Tin 
custom  of  the  country  cannot  be  set  up  against  the  legal  presumption  that 
Michaelmas  means  any  other  day  than  the  29th  of  September.    You  must  .>hu\v 


•  Carlyon  v.  Hayward,  24  SoJ.  .1.  807. 
«  Sawtelle  v.  Drew,  1"2  Mass.  2'28. 

3  Rciinctt  V.  Scliginan,  ;t2  Mich.  500. 

•  Knox  V.  Artman,  3  Itioh.  L.  283;  Chi- 
eester  v.  Walker, :{  Rich.  L.  284. 

<>  Uowlaiul  V.  Hanna,  2  B.  Mon.  VM. 

•  Wabash,  etc.,  Canal  Co.  ti.  Brett,  25  Ind. 
4*9;  Womack  v.  McQuarry,  28  Ind.  103;  Kel- 
lenbcrgcr  r.  Forcsman,  13  Ind.  476. 

1  Biddle  v.  Keed,  33  Ind.  529. 

•  Price  V.  WilliamB,  1  Mee.  &  W.  6;  Poole 
«.  Hill,  6  Mee.  &  W.  8;i5;  Stcphene  v.  De 
Medina,  4  Q.  R.  422;  Duke  of  St.  Albans  v 


Shore,  1  H.  Black.  274;  Doe  v.  Stillwcll,  J- 
Ad.  &  E.  M5;  Hallings  v.  Connard,  Cro.  Kli/.. 
517;  Helps  V.  Clayton,  17  C.  H.  (N.  8.)  553. 

»  Grissell  v.  Robinson,  3  Ring.  N.  C.  II. 

"•  Martyn  v.  Clue,  18  Q.  B.  ftil;  White  v. 
Nicholson,  4  Man.  A  G.  95. 

»  Webb  V  Pluinmer,  2  Barn.  A  Aid.  74(i. 

"  Finley  r.  Wood,  1  Esp.  178;  Doe  v.  l!cn 
son,  4  Barn.  &  Aid.  088;  Doe  v.  Lea,  U  Ka8t, 
312.  , 

13  Doe  V.  Benson,  supra. 

'<  Smith  V.  Walton,  8  Ming.  238;  Kearney  r. 
King,  2  Barn.  &  Aid.  301. 


1 


LANDORD    AND   TENANT. 


271 


Customs  as  to  Fixtures. 


by  direct  evidence  that  this  was  an  old  Michaelmas  tenancy."  '  And  a  local 
custom  that  a  leasr  from  tlie  (irst  day  of  May  in  one  year  to  tli»>  (Irst  day 
of  Miiy  in  a  auccoctdinjj;  year  expires  at  noon  of  the  last  day,  has  Ijccn  held  in 
New  Yorlv  to  be  not  only  valid,  but  convenient  to  all  concerned.' 

§  130.  Explaining  Terms  in  Lease. —  In  the  leadini:  case  of  Smith  v.  Wilson;-^ 
wliorc,  in  a  lease  of  a  ral)l)ll  warren,  the  lessee  covenanted  that  at  the  expira- 
tion of  his  term  he  would  leave  on  the  warren  10,000  rabbit?-,  tlie  lessor  payinii 
fortliom  at  the  rate  of  £;(iO  per  1,000,  it  was  iield  by  the  Court  of  Queen's  Bench 
Uiat  parol  evidence  was  admissible  to  show  that  by  the  custom  of  the  country 
wiiere  the  lease  was  made,  "  1,000,"  as  applied  to  rabbits,  mc  ant  "  1,200." 

§  131.  As  to  Fixtures. — OnlUmj  v.  Tiiffnal,*  decided  in  1G74,  is  thus  reported: 
•'  In  trover,  for  ten  loads  of  tiuiher.  Tli  ■  case  was,  that  the  defendant  had  been 
toniint  to  the  plaintiff,  and  erected  a  barn  upon  the  premisi-.,  and  put  it  upon 
pattens  and  bloclis  of  timber  lyinir  upon  tlie  srou'"')  but  not  dxeil  in  or  to  the 
•;ronnd;  and  upon  proof  that  it  was  usual  in  that  country  to  erect  barns  so,  in 
or«1(T  to  carry  them  away  at  the  end  of  the  term,  a  verdict  was  <;ivon  for  the 
defendant."  Thi'?  rulinjif,  it  lias  been  since  thounht,  niij^ht  properly  have  been 
placed  on  another  gronnd,  as  the  property  in  question,  not  btsint;  llxed  to  the 
frronnd,  could  not  riirhlly  be  ilainicd  by  the  landlord.  But  evideuce  similar  to 
tliat  admitted  in  Cu'linij  v.  T'lffnal  has  been  allowed  in  suh.-equent  cases  for  the 
purpose  of  determining  whether  or  not,  as  between  landlord  and  tenant,  or  other 
claimants,  certain  structtii-es  were  to  be  considered  as  fixtures.  Thus,  in  Davits 
Y.Jimrs,^  where  it  had  been  Usui!  to  value  a  particular  article  between  oiitcoming 
and  incomin!!  tenant,  this  custom  was  held  to  govern  in  determininu;  the  nature 
of  the  property.  "  Such  a  practice,"  said  Aimjott,  C.  J.,  "  could  not  rationally 
have  prevailed  if  the  things  had  not  been  j;enerally  understood  to  be  in  their 
nature  capable  of  removal,  and  not  Uxtures,  properly  so  called;  and,  therefore, 
taking  the  practice  as  an  explanation  of  their  nature  and  eharaeler,  we  think 
they  are  to  be  considered  as  personal  chattels."  In  this  country,  Mr.  Justice 
Story  held  it  competent  to  prove  a  usage  in  the  city  of  Washington  authorizing 
a  tenant  to  remove  any  building  which  he  might  erect  upon  leased  premises, 
provided  the  same  was  removed  before  the  expiration  of  the  term;  *  and,  follow- 
ing this  ruling,  the  Supreme  Court  of  Wisconsin,  in  18G0,  recognized  a  similar 
custom  in  the  city  of  Milwaul<ee.'' 

But  in  a  Pennsylvania  case  it  was  held  that  a  planing-mlll,  lathes,  and  vises  in 
a  machine-shop  or  car-factory  were  fixtures,  and  as  such  belonged  to  the  realty, 
irrespective  of  the  manner  in  which  they  were  attached  to  the  building  in  which 
they  were  used,  if  they  were  a  necessary  part  of  the  machinery  in  carrying  on  the 
business,  —  following  previous  rulings  to  that  effect  in  that  State,* —  and  that  •'  it 


1  Hogg  V.  ncrrington,  2  Fost.  &  Fin.  246. 

'  Wiloox  V.  Wood,  S)  Wciiii.  :!4ti. 

>  3  Barn.  &  Adol.  728,  post,  (Jhap.  IV. 

♦Bull.  N.  P.  34. 

<■  2  Barn.  &  Al<l.  166.  And  see  Watherell  v. 
Howells,  1  Camp.  34. 

'  Van  Ne88  r.  Pncurd,  2  Pet.  137. 

'  KioKh  V.  l)ani(!ll,  12  WifJ.  163.  And  see 
Tealf  V.  Hewitt,  1  Ohio  St.  511.    In  Viuer'e 


Abrid^niuiit,  I.'>4,  v  II,  it  is  Haid:  "A  granary 
built  on  pillai'.s  iu  lluinpshire  is  A  chattnl, 
and  goes  to  the  executors,  and  may  be 
recovered  in  trover.  ThiH  .shall  be  under- 
Btood  according  to  the  custom  ol  the  coun- 
try." 

8  Voorhis  v.  Freeman,  2  Watts  A  S.  US; 
Pyle  V.  Pcnnock,  2  Watts  &  S.  3a0. 


Hill! 


m 


272 


IN    DII'FP^KENT    RKI.Al'lUNS    AND    ()««  ll'A  I  lON.-s. 


Ltiiirlloril  .uid  Tc'iiiiil. 


:HP::|| 


fi 


was  not  in  the  power  of  the  defendant  to  evade  this  rule  of  law  by  piovinii  that 
tli<;ro  was  a  custom  iu  opposition  to  it.'"  And  in  a  Massacliusctts  ca^ir  ii  \vn^ 
held  tliat  a  steam-enf^ine  set  upon  a  granite  block  and  fastened  down  hy  al)oit, 
and  a  boiler  set  in  bricks  in  such  a  inaMiier  that  it  could  not  be  reiiiovtd  wiilioiu 
taking  down  the  bricks,  both  being  used  for  running  niaciiinory  in  an  a(l|i)iiiiii«; 
shop,  were  realty,  and  that  evidence  of  a  general  cusiora  and  usage;  between 
manufacturers  and  purchasers  of  such  property  to  regard  them  as  pciNdnaliy 
was  inadmissible.'^ 

And,  of  course,  where  the  parties  have  expressly  contracted  as  to  the  lixtiires, 
the  custom  of  the  country  can  have  no  weight.  A  lease  contained  a  covciuiiil  to 
leave  at  the  end  of  the  term  a  water-mill,  with  all  (ixtures,  fastL-niiigs,  ami 
improvements  during  the  demise  tlxed,  fastened,  or  set  up  in  or  upon  tin 
premises,  in  good  plight  and  condition,  reasonable  use  and  wear  only  cxctpted. 
Tills  was  held  to  include  a  pair  of  new  niill-stoni's,  set  up  by  t,iie  lessee  diiriiii; 
the  term,  although  the  custom  of  the  country  authorized  him  to  remove  them.' 
An  assignment  was  made  of  a  mill,  "fixed  machinery,  and  hereditaments,  with 
all  looms  and  other  machinery,  fixed  or  movable."  It  was  held  that  looms  put  up 
by  the  lessee  of  the  mill  for  his  convenience  during  the  existence  of  his  term, 
and  fastened  to  the  floor  so  as  to  be  easily  removable  without  injury  to  the 
freehold,  passed  thereunder,  notwithstanding  a  custom  in  the  trade  not  to  rcuMnl 
such  looms  as  fixtures.*  But  where  a  lease  contained  covenants  on  tiie  part  of 
the  lessee  to  deliver  up  the  premises  at  the  end  of  the  terui,  "  reasona')le  use 
and  wear  tliereof,  and  damages  by  accidental  fire,  or  other  accidents  not  ti!i|)|)eii- 
ing  through  the  neglect  of  the  tenant,  only  excepted,"  these  were  lield  not 
inconsistent  with  a  nsage  allowing  the  removal  by  a  tenant  of  building!)  erecttJ 
by  him  on  the  premises.* 


§  132,  Not  admiasable  to  contradict  Lease. — But,  as  in  the  cases  cited  in 
the  previous  section,  evidence  of  usage,  though  admissible  to  add  to  or  explain, 
is  never  permitted  to  vary  or  contradict,  either  expressly  or  by  implication,  the 
terms  of  a  written  lease."  Where  an  action  was  brought  by  a  landlortl  against 
an  incoming  tenant,  and  the  declaration  stated  that,  in  consideration  that  the 
landlord  would  give  up  to  the  tenant  possession  of  the  farm,  on  which  manure 
had  been  laid,  and  would  permit  him  to  have  the  benefit  of  the  inaiuue,  he 
promised  to  pay  the  landlord  for  the  same  according  to  the  custom  of  the 
country,  and  the  breach  alleged  was  non-payment,  a  written  agreement  was 
offered  in  evidence  of  the  custom,  which  stated  that  the  land  had  been  niannied 
with  eight  loads  of  manure  per  acre,  and  that  the  tenant  agreed  to  leave  tli^'  land, 
when  given  up  by  him,  in  the  same  state,  or  to  allow  a  valuation  to  be  made. 
Here  it  was  held  that  the  written  agreement  excluded  the  custom  of  the  conn- 
try,  as  it  was  inconsistent  with  it.'  In  Roberts  v.  Baker,*  the  question  was 
whether  a  covenant  in  a  lease,  whereby  the   tenant   bound    himself  not,  on 


i'?i 


!i  I 


'  Christian  v.  Drii)ps,  28  Pa.  St.  271. 

-  Richardson  v.  Copclanrt,  6  Gray,  .^:J6. 

'  Martyr  c.  Bradley  'J  Biiig.  21. 

*  Boyd  I'.  Shorrock,  Ii.  II.  H  Kq.  72. 

>  Keogh  I'.  Uauiell,  12  \Vi.«.  163. 

»  See  Thorpe  v.  Eyre,  1  Ad.  &  E.  ii26;  Staf- 


ford V.  Gardner,  L.  R.  7  C.  P.  '«2;  Siitti>n  v. 
Temple,  12  Mee.  &  W.  Hi. 

'  Clarke  i'.  Roy.stonc,  13  Mee.  &  W.  762. 
Wiltshoar  v.  Cottrell,  1  El.  A  Bl.  6M. 

-^  1  Cromp.  4  M.  808. 


•    If, 


LANDLOKI)    AND    TKNANT. 


273 


Ciisloiiis  of  till'  I'oiintiv. 


(|iiiftins  the  lanu,  to  sell  or  takeaway  the  manure,  but  to  leave  It  to  be  expended 
bv  the  succeediiis  tenant,  excluded  the  custom  of  the  country,  by  wliich  the  oul- 
iroiiiL;  tenant  was  bound  to  leave  the  manure,  and  was  entitled  to  be  paid  for  It. 
Tlie  court  held  that  it  did.  In  that  case  Lord  Lyndhukst  said:  "It  was  con- 
tended that  the  stipulation  to  leave  the  manure  was  not  inconsistent  with  the 
teiKiiit's  being  paid  for  wiiat  was  so  left,  and  that  tin;  custom  to  pay  lor  the  manure 
iiii;:iit  be  ensrafted  on  the  eii<j;a';ement  to  leave  it.  But  if  the  parties  meant  to  be 
governed  by  the  custom  in  this  respect,  there  was  no  necessity  for  any  stipulation, 
as,  by  custom,  the  tenant  would  be  bound  to  leave  the  manure,  and  would  be 
entitled  to  be  paid  for  it.  It  was  altoiictlier  idle,  therefore,  to  provide  for  <me 
part  of  that  which  was  suflieiently  provided  for  by  the  custom,  unless  it  was 
iiiiended  to  exclude  the  oilier  part."  lu  another  case,  it  appeared  that  a  tenant, 
In  ;i  clause  in  his  lease,  was  hound,  "  at  his  removal,  to  leave  upon  the  land  all 
the  tlunji  and  manure  of  the  preceding  year,  the  value  to  be  paid  by  the  succeed- 
ing' tinant,  and  at  no  time  to  sell  or  give  away  any  of  the  hay  or  straw  of  the 
sakl  linn,  which  shall  alwav-;  be  spent  on  the  urouud,"  and  the  point  in  dispute 
was  wlielhe-  he  tenant,  ur.der  that  contract,  was  or  was  not  entitled  to  take  away 
or  sell  the  siraw  of  the  hist  or  wayuoing  crop,  and  whether,  if  the  tenant  threat- 
ened to  sell  the  straw,  the  lessor  was  entitled  (the  case  having  arisen  in  Scot- 
liiinl)  to  letters  of  suspension  and  interdict.  It  was  held  that  the  custom  of  the 
i.Diintry  could  have  no  operation  in  such  a  case,  as  there  was  a  contract  between 
tlic  piirties,  with  provisions  applicable  to  the  point  in  dispute,  and  that,  conse- 
qiieiiily,  letters  of  suspension  and  inlerdict  might  be  had  and  maintained  by  the 
lessor.' 


'.•4 


I 


:mv 


§  133.  When  Lease  not  Inconsistent  with  Custom.  —  In  the  oft-cited  case  of 
Huttonv.  iratren,''' decided  by  the  Court  of  Exche(|wer  in  18.">(J,  it  was  lield  that 
a  custom  of  the  country  by  which  the  tenant  of  a  farm,  cultivating  it  according  to 
good  husbandry  is  entitled,  on  quitting,  to  receive  from  the  landlord  or  iiicoining 
tenant  a  reasonable  allowance  for  seeds  and  labor  bestowed  on  the  arable  land 
in  the  last  year  of  the  tenancy,  and  is  bound  to  leave  the  manure  for  the  land- 
lord if  he  will  purchase  it,  was  not  excluded  by  a  stipulation  in  the  lease  under 
which  he  held  that  he  would  consume  three-fourths  of  the  hiiy  and  straw  on  the 
farm,  and  spread  the  manure  arising  therefrom,  and  leave  such  of  it  as  should  not 
he  spread  on  the  land,  for  the  use  of  the  landlord,  on  receiving  a  reason iiiile 
price  for  it.  The  judgment  of  Mr.  Baron  Paukk  in  this  case  has  been  referred 
to  with  approval  and  quoted  from  at  h.-ugth  both  by  Mr.  Smith  in  his  notes 
to  Wiyijlesioorth  \ .  Dallisov ,''  and  by  Mr.  Muowm;  in  his  monograph  on  Uswjus 
and  Customs.*  "  It  has  long  been  settlcil  in  commercial  transactions,"  said  Mi 
Baron  Pakke,  "that  evidence  of  a  cusiom  and  usage  is  admissible  to  annex 
incidents  to  written  contracts  in  matter-  with  respect  to  which  they  are  silent. 
The  same  rule  has  also  been  applied  to  contracts  in  other  transactions  in  life  in 
which  known  usages  have  been  established  and  prevailed,  and  this  has  been 
done  upon  the  principle  of  presumption  that  in  such  transactions  the  parties 


'  Roxburgh  v.  Rnbertson,  2  Bli.  166.    And 

6CC  lIuglicH  r.  (Jordoii,  i  lUi.'.NT;  Cliiinn  >: 
Cooke,  1  Heh.  ft  l,ef.  •22;  White  r.  Sayer, 
''aim.  211. 


-'  1  Mce.  ft  W.  466. 

"i  1  Smith'H  1.(1.  Oau.  554. 


« 


•■■  * 


i:! 


1 


274 


IN    I)IK1'KI.!:\T    UKLATIONS    AM)    OCCUl'A TIONS, 


L:il:  Mord   uihI   'I     ;i;illl. 


di<l  not  moMii  lo  cxpri'-s  'm  writiii!;  tlic  wliolo  of  Wv  cotitiuct  by  \vlii.!i  iho^ 
iulcinliil  lo  1)0  1)01111(1,  hut  to  I'luiirart  with  ri-fiTcncf  lo  '!io-.(!  known  u^.^'i's.' 
Wiictlicr  Micii  11  rclux:iiiipn  of  tin-  stridiicss  of  t.lie  coniiiioii  l;(\v  wa-;  .m..;\ 
U|)|>li(;(l  \vlu'i'c  foriiKil  iii^iriniiciii.s  hue  been  entercf!  Into,  and  partic  iil.ir' ,  is;-, 
luiiicr  seal,  may  well  lie  doubled;  but  tlif  L'onlrary  lia^  been  otabli^di  i]  \t\  -v.,].. 
aiiliioriiy,  and  llu-  r«dali'>ns  btawi-i'ii  landlord  and  tenant  liav(;  be.  n  ho  .mi:, 
ri',i.',nl;iiid  upon  tin'  ^-iiiij.  )^iiion  tliat  all  cii-itoinary  obiuation-;  not  ullencl  >•: 
Uic  colli rari  are  !,o  rcniaiii  ,n  fo/i'c,  thai  it  is  too  late  to  pur.siu!  u  (;()iilr:ii\ 
conrsf,  and  i!  would  be  product!  i'  of  iiiiali  indonvt-nicncc  if  this  praclii!!'  \v>t. 
no^v  lo  be  (!iN!ui'b;'d.  Tiic  com  iioii  law,  iiidocd,  doc^  .so  little  to  prcM-iil).'  il;e 
ndative  duties  of  landlord  and  U'liant,  siinjt;  it  leaves  tlie  ia'.icr  aL  liiiiiivio 
pursue  any  coiir-ic  of  uiniiMueineiU  liu  pleases,  provided  iic  is  not  •j.iiliyof  \v;i4 
that  it  i.s  by  no  iii.ans  siiriii  isiiiir  Uiat  the  courts  have  been  favorably  iucliiii'd  to 
the  intro(hiction  of  tliesi-  reivulaiions  in  tlie  mode  of  cultivaliou  \vlii''li  cu-.  ::i 
and  iisa'^e  lune  fsi.iijli^h'-d  in  eacii  di«.iric,t  to  be  tii"  uiost  iLuielicial  to  all  ,■:- 
ties.  Acoordiiiniy,  in  \l'iif'jl-t<iO'>rtk  v.  [JiHisan,  afuTw.irds  allirincd  on  a  v.  litoi 
error,  the  ifii.iut  was  idlowrd  an  av\ay;ioiny:  crop,  thouuh  lluiv  Ma-  n  funniil 
lea^c  uiidrr  seal.  T.n'i'c  the  lease  was  eiuii-,-ly  silent  on  the  sulijeet  of  -\[i:,'a  .. 
rifilil,  and  Loid  .Mansmi:i,;>  said  that  tin-  (;u-iom  did  nol  alter  or  eoiiMadicr  ii,o 
lease,  but  oidy  superathled  soiiKl!iin^  to  it.  'I'he  (juesti(ui  sub-e(|inuily  caiiif 
under  the  rronsideraiiou  of  tlu-  Court  of  Kin;j;'s  lieiicli,  in  the  case  of  Sraw-w 
Arni/tai/i:,  ri'iiorled  in  .Mr.  Holt's  \isi  Prius  Cases.  In  tliat  case,  uliicli  was 
an  action  by  a  iei,.iit  a-Minst  his  landlord  for  compensation  for  sc  1  and  l.ih  ir, 
under  the  deuomiiiatioii  of  tenaut-riu;hl,  Mr.  Justice  15.\vi.i:v,  on  ii>  apM  i;- ,i-- 
tliat  there  \\a■^  a  wrift'ii  a;'reement  l)etwt;eii  the  parlies,  nonsuited  iln  |  ..limiff. 
The  court  afterwards  set  a-^idc  liie  nonsuit,  and  lield,  as  appear-  by  a  iiuuiu- 
script  note  of  thai  learned  jnd;;e,  that  though  there  was  a  written  con; met 
between  landlord  arul  leuaiit,  tlie  custom  of  the  coimtr>  would  si. 11  be  Idmli  ,.', 
if  not  ineon«i'-t(uit  \*  illi  ihe  terius  of  such  written  contract;  and  that  not  i  iiiv 
all  couinioi!  law  olili^alioiis,  but  tliose  imiiosed  by  caisioui,  were  in  full  foi\f 
wlierc  the  eoiiiiacl  did  not  vary  tlu;m.  Mi.  IIoll  appears  to  have  slain!  (lie 
case  too  siioiijily  wlnn  li(^  said  that  i  he  court  held  the  custom  lo  be  ojicrMl!.. 
•  unless  ihe  au;reeiue!it,  in  express  terms,  excluded  it;'  and  probably  he  has  iiil 
been  (luitc  accurate  in  attribntiiv^  a  similar  opinion  to  the  Lord  Chief  li;ii'iii 
TiioMi'soN,  who  pr<  si<led  on  the  second  trial.  It  would  ■appear  that  the  ('(M!!-! 
held  that  the  custont  operated,  unless  it  could  be  collected  troin  the  in-lruuiciii 
either  exjiressly  or  impliedly,  that  the  parlies  did  not  mean  to  be  jiioveraed  ■'■ 
it.  Un  the  second  trial,  the  Lord  Chief  IJaron  Tuo.mi-so.n  lield  that  tlie 
pre\;iiled,  althotiuli  the  written  instrument  contained  an  expn'ss  stiiuiia' 
all  the  manure  made  on  the  farm  should  be  spent  on  it,  or  left  at  tlie  •'! 

the  tenaiiry,  without  au}  eouipeusation  beJuLC  paid.  Smdi  a  stipulation  CLr.,i.iily 
doe.s  not  exclude  by  implication  the  tenant's  rif^ht  to  receive  a  coinpensation 
for  seed  and  labor.  Tiie  next  reported  case  on  this  subject  is  Webb  v.  I'hmmi'r, 
in  which  tliere  was  a  lease  of  down-land,  with  a  covenant  to  spend  all  the  pro  1- 
uce  on  the  premises,  and  to  fold  a  flock  of  sheep  upon  the  usual  part  of  tin 
farm:  and  also,  in  the  last  year  of  tlie  term,  to  carry  out  the  in-nuire  on  part-  of 
the  fallowed  farm  pointed  out  by  the  lessor,  the  lessor  payin;:  for  the  faliouui;; 


1  See  Gibson  v.  Small,  4  H.  I-.  (Us.  :i!17,  per  Parke,  B. 


LANDLOKI)    AM)     ri;\  '  S  V . 


k»7  c; 


\V]\]c]\  tiloy 
WHS    '.\|..1_\ 

i!ai-'y  !^  .-isi's 
lti|  l)y  -1)1  ; 
'11    so    ,M|- 

a  <:()iilrar> 

•CMM-il)!!  ll;o 

I  I'l'ih  I'ly  U' 

y  (if  w,i.>t  , 

incliii'''!  ti^ 

li'-il  Cii-  ;;! 
1    to  all  .,',:■ 

Ill  a  \vi  it  oi 
a-  a  fi>i-m;i'; 

:\j  of   >IIC.1  :i 

iiiradic  liji' 

lira; ly  caiuv 

)f   Srnio>'  V. 

uliirli  uu'i 

1   ■A\V\   l.lIl.T. 

l|i|)  a;-  .lu' 

iir  i  .aiii;;ff. 

by  a  iiiai.u- 

I'll  contract 

be  hiiu'.ii.,', 

U   iioL  i.r.ly 

full  foue 

■^talcil  tlie 

ii;iui'iit;.'' 

lu'  has  ir'l 

liicf  Haioii 

I  ill-  coi'.rt 

i-inimi'iii 

I'ai'il    '■ 

tiic  '•'•• ' 

la' 

liif  'jI 

cvv.<   ■' 


i|U'n>alioD 
riHiinni'r, 
tl\c  pro'i- 

U'l    of    till' 

III  pari-  of 
t'allortiii;: 


(^ll^t<Mn>  of  IIk'  (iiiiiilrv. 


lari'l  iml  cai'ryiii":  out,  tin.'  (iuii::,  iiiit,  tiolliiii'^  fi>r  tli''  dun'jj  i'-rlf,  aiul  j/ayiii-  lor 
ixr.x^-  oil  tin;  ;ii'oiiii(l  and  Uirt'sliiii^i  lln'  i'<  vu.  'VI  i-laim  was  for  a  cust'iuiary 
iill<iwaiic(i  for  foldaijc  (a  iiiodi-  of  maiiiirint:  llir  ltouh  1  >,  luit  tii.'  co:-!',  :  .  Id 
t!i;n  as  liu^n:  was  an  oxpi'os  provision  for  sum"  payiuu  n,  on  i|iiiitiir_-.,  lor  ;Iif 
tliiii.rs  coviMiaiilod  to  l)o  done,  and  a!i  oinissjoii  of  iolda,-,  t.lic  cn^iimai'v  (jlili- 
iiatioii  to  pay  for  the  latd.'r  was  cxclndi'.l.  No  dc-ibt  co'iM  exist  in  tl.at  <\i<v 
i)iit  llial  Iho  lan'j.iiau'(j  of  tin;  icasc  \va>  ciiniv  alciit  to  a  sti;<iil:i(ion  tliat.  tlK-  l's-.i)r 
should  iiay  for  the  tlilims  mcntioni'd,  and  no  nion;.  'V\f  iiucsM.mi,  liic!),  i> 
\vli>!ii>r,  from  tlu'  l,(>niisof  tiic  lease  now  under  coiislderalion,  it  (;an  !u' cf)llec'ted 
that  till!  parlif's  intendi'd  to  exi  liide  tli'-  enstomary  ol)li;j:alioM  to  nrilx<'  allow- 
aiic's  for  se(;cl  and  labor.  Tli"  only  elaii>r  ri'latiiv^i  to  tlie  inanaue  neiit  .  f  tlie 
fariii,  except  llio  covenant  to  repair,  is  one  which  slipii!ate(l  that  llie  pla  eiiff 
shall  sjK^Md  a?id  coiisiiine  on  the  farm  thre(;-fonrMis  oi'  the;  li:n  and  Mtra.w  ari^iii:; 
not  only  from  the  fr.nii  il' ■■''',  but  from  tl\(;  demised  titli'--  of  tiu>  whole  pai'i^ti. 
and  spread  the  manure,  kauiii^  siuli  as  should  not  be  spread  a'  ''■  •  end  of  the 
trnii,  fnr  the  use  of  flie  lainllord,  on  paying;  a  reasonable  prii'e  inr  the  same. 
Tliis  provision  iiitrodnces,  and  lias  a  principal  reference!  to  a  suiijcct  to  \\hic!i 
the  cnstom  of  the  coniiliydoes  net  apply  at  all,  i.aim  i , ,  the  I  illies,  -  and 
iinpo-es  a  new  ol)lit;a1ion  nn  tlie  lenant  d'hnrs  that  cii-toai,  and  tin  a  (iiialilie^ 
that  ol)!i;!:alio!i  by  an  eniia^emeni,  on  the  landlord's  pan  to  <r\\t:  a  remnnerati'iii 
by  repiirclia.'-iiiii  a  part  of  the  produci;  in  a  particul.ir  event.  It  is  by  no  means 
to  he  inferred  from  this  provision  tiiat  this  is  the  oulv  compeiisaiion  which  the 
tciiaiii,  is  to  receive  on  (|niitiiiii.  If,  indeed,  (here  had  boett  a  covenant  by  the 
ii'iiain  to  plough  and  sow  a,  ceri  tin  portion  of  the  deini  --d  land  in  the  last  year, 
beiiisi  such  as  th(!  custom  of  ihe  country  rc'ipiired,  he  I  ein;;  paid,  on  'pii;  linv, 
for  tiie  I'loiu'hin'.r;  or  to  plo'iuii,  sow,  and  manure,  hi'  b 'ini;  paid  for  ilie 
ni'ieai'inir,  tlie  principle  of  fri)ri:<:;ii.in  fdr.it  <:f;;-i/ri-  iicitiuii,  which  '.ovenii'd  the 
dc'lsioa  in  W'l'hh  w  J'/^nninpr,  would  have  applied;  l)at  that  is  not  tlie  (rase  here. 
The  custom  of  tlu;  e  ii.ntry  as  to  the  obligation  of  the  tenant  ti>  ploupjh  and  ,sf)\v, 
ftiid  tlie  corre-pondinit  (jliliiiation  of  the  landlord  to  pay  for  sieh  ploiLrhiuir  and 
sowiiiij  in  the  last  year  of  the  term,  is  in  no  way  varied.  Tii"  inly  aUeration 
made  in  the  custom  is  that  the  tenant  is  obliijjed  to  spend  more  than  the  [)rodnce 
of  t'ae  farm  on  the  premises,  beinir  paid  for  it,  in  the  •<.mu:  way  as  he  would  ha\-e 
been  for  that  whicli  the  custom  required  him  to  spenfl." 

If  a  lease  contain  no  stipulations  as  to  tlu'  mode  of  quittinir,  the  offfxcinji 
tiaiai  '  is  entitled  to  iiis  v.ayii-oinir  i:rop,  aceordiicr  to  the  <'ustoin  of  tin;  country, 
t'v(a;  although  the  terms  of  holdiim  may  bo  inconsistent  with  such  a  custom.' 
Mthou^h  this  ni;.'j;ht  at  lir-i  sii:lii  si^'in  rijpui^naut  to  the  doctrine  stated  in  the 
,nv\  ions  section,  it  will,  upon  exaniinati  ui,  be  found  to  b<'  in  srict  conformity 
with  the  principle  of  thai d'lctrine:  tor  the  aiii'e<,'m(Mit  under  which  the  tenant 
held,  in  the  case  in  which  the  above  principle  was  enunciated,  was  silent 
alKiL'ether  as  to  any  terms  on  which  the  Tenant  >honld  (piit,  and  the  clause  of  the 
nsreement  w'  ch  was  inconsistent  with  tin  laistom  of  the  country  was  u  stipu- 
lation conthied  expressly  to  the  period  of  holdinir  by  the  tenant.  It  adverted  to 
iiothini;  thai  was  to  iak(!  place  at  the  end  of  the  tenancy,  and  spoke  oidy  of 
tirins  of  holding  durinij;  its  continuantre.  There  was,  therefore,  notliiiij'  in  such 
an  agreoiuent  at  variance  vvitli  the  application  of  a  custom  between  landlord  and 

I  Holdings.  Pigoti,  7  iSinK>46& 


8    ; 

fi 


f. 


!   t 


\ 


";i 


i  A 


m 


mim^ 


276 


IN    DIFFERENT    KIOLATIONS    AND    OCCUPATIONS. 


Master  and  Servant  —  Employer  and  Kinployee. 


tenant  which  did  not  come  into  '^rce  until  tlie  expiration  of  tlie  term.  In  ;li:it 
case,  tlie  rights  of  the  landlord  and  tenant  were  sioverned  by  the  terms  of  the 
agreement  during  the  tenancy,  and  by  the  terms  of  the  custom  imraediateh- 
afterwards.  It  is  clear  that,  as  the  agreement  only  referred  to  the  contin- 
uance of  tlio  tenancy,  both  the  landlord  and  tenant  must  have  anticipated  ;'ot 
only  an  end  to  the  holding,  but  must  have  looked  forward  to  a  time  wIhh 
their  inuliiiil  relations  must  bo  regulated  by  some  other  rule  than  that  (■ou- 
tlined in  the  agreement.  As  there  is  nothing  said  as  to  the  end,  tliere  is  tlu' 
ambiguity  of  silence,  which  the  custom,  of  the  country  can  be  called  upon  to 
explain.'  Again:  where,  by  the  terms  of  a  farm  lease  for  seven  y('iir«,  expirini^ 
at  Michaelmas,  the  tenant  agreed  to  cultivate  the  land  according  to  the  cikIoui 
of  the  country,  and  "during  tlie  term  to  consume  with  stock  in  the  farm  all  ij..' 
hay,  straw,  and  clover  grown  thereon,  which  manure  shall  be  used  on  tli^ 
farm,"  and  the  landlord  agreed  to  let  the  tenant  occupy  part  of  the  liomestci,  I 
until  midsummer,  after  the  expiration  of  the  term,  if  necessary,  "  to  end  tli- 
cropping  of  the  tenant  grown  on  the  premises,"  it  was  held  tliat  the  I(!ase  di  I 
not  exclude  the  cusccm  of  the  country,  by  which  the  tenant,  haviiii;  palil  for 
straw  on  his  incoming,  was  entitled  to  be  paid  for  straw  on  his  quitting.' 

VI.   MaSTKR  and   SKKVANT  —  EmPLOYKR   ANt>   Emit.oykk. 

In  the  relation  of  master  and  servant,  and  on  all  contracts  for  service,  custom 
and  usage  are  often  important  to  determine  the  rights  and  liabilities  of  the  pa'-. 
ties.  A  majority  of  the  cases  in  whicli  tliis  cpiestion  has  been  determined  In  tlie 
courts  hav.^  ariiicn  upon  the  construction  of  written  contracts  of  service,  ami 
will  be  found  fully  stated  in  a  subseqinnit  cliapter,  wherein  the  effect  of  :i>ai:e 
in  the  const luction  of  written  instruments  \o  discussed.  Indi^pendently  of  tlii'*, 
however,  several  cases  are  to  be  found  in  the  books,  of  more  or  hss  praelical 
importance  to  the  lawyer,  and  in  which  evidence  of  usage  lias  been  received  to 
determine  the  length,  the  terras,  and  the  proper  performance  of  a  servant's  or  in 
employee's  engageuuint. 

«i  1,14.  As  to  Terms  or  Conditions  of  Service.—  l  sage  may  regulate  the  oomli- 
tioiis  of  the  employee's  service.  Thus,  it  may  be  admissible  to  show  the  !eim!!i 
of  a  hiring'  when  there  is  no  expr'  ss  agreement  as  to  the  time  the  servant  i-^  to 
work.'  Ill  Cnnvfnghnm  v.  F(»ibla))i)iii:,^  there  was  admitted  in  evidence  a  iinil'i' 
between  the  printers  and  proprietors  of  newsiiapers  that  the  latter  sliould  ^iivc 
to  the  former  four  weeks'  notice  of  taking  the  work  from  them,  or  pay  Miein  fonr 
'.veeks'  wages."  In  Oivm  v.  Ch(j-r<in,^  which  Wiis  an  action  for  a  wrongful  ilis- 
mlssal,  evidence  of  a  custom  .'iiiiong  dry-goods  jobliers  in  IJaltimore  that  wlicii 
a  clerk  or  salesman  begins  a  season  willMUt  a  special  eonfr;'et  he  caiiiinl  hr 
dismissed  till  the  end  of  it,  and  that  the  st.-a.sons  are  two,  —  one  fnmi  .Fanuiiry 
1st  to  July  1st,  and  the  other  from  .Inly   1st  to  January  1st, —  was  admitted. 


Hrownn  on  Usiixe«  &  Customs,  41. 
Muucey  (    iienni.s,  1  Hurl.  &  N.  216. 
Till!  Swallo'v,  Olc.  Adm.  Ml;  Harris  c. 
Nii:lialai*,0  Mini..  4H,>. 

'  <ilcH8on  f.  Walsh,  4:1  Me.  397. 


■  6  Car.  A  P.  t(.    And  ^ac  l'ijrkiii.t  '■.  •)•»• 
(tail, :»  Mc.  2;t. 

''  Ciiiiaiu^h  Mil  (.  l<'.)iibl.iiimR',  li  Car.  A  !'• 
44. 

I  16  Md.  ;-.(l.' 


■I'l 


v\ 


MASTKK    AM)    SKRVANT 


KMI'LoYKIi    AM>    r.MPI.OYEE. 


277 


Performaiu;e  of  Serviciss  —  Usajse. 


"VVi'  think,"  sa'nl  tli«  court,  "the  testimony  was  pioporly  ;i(liiiil.tfHl.  It  was 
pertinent  to  tlie  contract  dochired  upon,  and  a  link  in  tli(>  chain  oi  cviiicnce  to 
establish  a  custom  (^xisLin";  amonii  dry-j^oods  jol)l)<"rs  as  to  tlie  time  for  whicii 
l.i(\  were  to  be  understood  as  empluyini^  clerks,  when  notliini;:  w;is  said  in 
regard  to  it.  The  (|Most,ion  of  the  reasonahlencss  of  the  custom  was  not  involved 
in  iiie  offi  '."  '  Anil  a  i;usloin  under  whicii  journeymen  and  employeits  are 
required  to  work  for  their  employers  a  (lertain  number  of  hours  a  day,  ;uul  are 
allowed  the  privilege  of  workint;  for  themselves  at  other  times,  is  not  uui-eason- 
able.'  But  the  iisajie  must  be  a  reasonable  one;  and  for  ia(;kin.!^  this  re(|uisite 
to  the  validity  of  a  custom,  a  custom  that  a  persou  emi)loye(l  to  cut  staves  rrom 
another's  bolts  has  a  right  to  take  and  appropriate  to  his  own  use  both  the  clip- 
piims  and  corner-pieces  and  the  culls,  without  the  consent  of  tlie  owner,  h;is 
been  adjudged  invalid.^  A  usaye  on  the  part  of  business  establislim(!nts  to  'rr- 
nlsli  each  other's  clerks  with  ^^oods  and  charj;e  them  to  eacli  other,  has  c  ^^n 
reeti^ni'/.ed  in  Michijran.' 

As  to  the  effect  of  custom  on  the  term  of  tlu  employment,  see  the  leading  case 
ollldcro/t  \. Barber.^ 


T^ 


!;.t' 


i 


§135.  A8  to  the  proper  Performance  of  a  Service.  —  \w\  usa^e  m.iy  be 
properly  shown  in  order  to  settle  a  (piestion  as  to  the  proper  performance  ot  the 
duties  of  a  particular  .service."  Therefore,  where  the  plaintiffs,  wlio  were  book- 
sellers, eni|)loye(;  the  defendant,  a  printer,  to  print  for  them  an  edition  of  one 
thousand  copies  of  a  book  called  "Taylor's  Holy  Livin;^,"  but  the  latter  printed 
fifteen  hundred  copies,  delivering  them  one  thousand  aud  disposing  of  the 
remainder  to  his  own  use,  it  was  held,  in  an  action  brought  by  them  for  damage 
caused  by  the  market  being  thus  overstocked,  that  it  was  a  proper  sid)ject  of 
testimony  to  show  that,  according  to  the  usag(!  among  printers  and  booksellers, 
a  printer  contracting  to  print  for  a  boolcseller  a  certain  number  of  copies  of  any 
work  is  not  at  liberty  to  print  from  the  same  type,  wldle  standing,  an  extia  num- 
lierfor  his  own  disposal.'  So,  also,  it  is  competent  to  prove  a  custom  tliat  the 
employment  of  an  architect  to  make  plans  and  designs  for  a  building  carries 
with  it  an  employment  to  superintend  its  construction.'  So,  in  Texas  it  might 
be  shown,  before  the  abolition  of  slavery,  that  on  a  contract  of  hiring  of  a  slave 
to  do  ordinary  and  customary  labor,  the  slave  mii\  l)e  employed  in  cleaning  out 
a  well.' 

Ill  linulc,  v.  Swpi'tzn',^"  Charles  Reade,  the  English  novelist,  \y.,\  mg  bro  i-ht  an 
ueiiou  of  libel  against  the  publisher  of  a  weekly  newspapei  in  New  York,  called 
the  Round  Tahh',  for  charging  him  with  dishonorabli'  praetiees  in  allowing  his 
name  to  be  given  to  tlu;  pultliealions  of  others,  e\  idem  e  %vas  offered  and 
admitted  which  went  to  show,  on  tlu;  testimony  of  literary  men,  that  it  was  a 


'  In  a  loccnt  Illinois  case,  a  custom  among 
whnlt'silc  meiclianls  in  Cliiiago  was  si-t  up 
ill'uvinp;  tiiuir  salesmen  pay  for  ti'ue  lost  l>y 
^iokMC88.  lint  the  court  held  it  not  sum 
pinuljr  proved.  Sweet  v.  Leach,  0  Iiradw. 
212. 

>  Barnes  e.  Ingnlls,  Is!)  Ala.  lltH. 

'  Wadlcy  v.  Davis,  (YA  Uuil).  501. 

'  Canioron  v.  lUaekniiin,  ;ii>  Mich.  108. 


5  1  Car.  &  Kir.  4,  ante,  p.  175 ;  Hnxter  v. 
Nurse,  1  Car.  A  Kir.  10;  <i  Man.  A  G.  'J;». 

'  Vaughn  I'.  Gardner,  7  H.  Mon.  :.■.'(;;  llunl 
V  Carlislo,  1  Ciray,  •.;.i7;  Martin  v.  Uiltiin,9 
Mete.  371 ;  Hunt  v.  Mickey,  12  Mote.  349. 

"  Williams  V.  Uilmnn,  3  Me.  276. 

"  Wilson  V.  liauman,  80  III.  tVA. 

*<  Willis  ) .  Ilanis,  2(>  Texas.  139. 

1"  6  Abl).  I'r.  (N.  8.)  9. 


,  ! 


■\ 


DliTi.UKiNT    ItKLATION,^    AM)    OCCUI'ATIO.N^. 


'\ 


M:i.«.icr  mid  Scrviint —  Kiii|iU)y<T  uii'l   Kinployco. 


corriTnon  ciislom  for  iiiithors  !;:r,:ii;!;  ii  hook  to  writ,(>  t,o  employ  othors  to  ai'l  tlii'm 
ill  (uiDnilii):;  it,  iiiid  tliiit  such  fact  l)eiii^  kii  wu  would  no'  dD-\'j;{'  tli"ir 
reputation. 


'I  f h 


§  !.'?">.  As  to  Wai^oa  and  Gonipenaation.  —  (Is;i'^(!  rniy  i\"j;ul!itc  an  (mtiiiIo 


WM'jre 


T 


inis,  i.hc  mod  '  of  piyinix  tli' 


r.rows  1 


»f  vc. 


\w  pi'opcjr  clni 


ji  veterinary  sur;:;eoii,'  and  Hk;  ri'^lit  of  a  local  aL:'>iit  employed  to  s(!ll  ula^^- 
in  a  certain  territorv  to  clalin  Cii'iiini-^-^loiis  botli  iitjoii  ;^oo  Is  ordered  di. 


through  him  imd 


upon  n'oo' 


orijcred  l)v  biu'ers   li\in.;  in   the  territ 


vce's 

wire 

i-cdy 
iry  of  llio 


ancnt,  directly  from  liu'  iiKinnl'a(!tiirer,'  liivt-  Iji-i  n  sliown  by  evidence  of  ciish'iii. 


So,  if  there,  be  anv 


■,i!  custom  in  a  i)artieidar  liiisiness  undei 


^vnjt■il  |i;iy- 


rnent  becomes  due  wc^'lciy,  monthly,  or  otiuunvise,  tiie  parties  will  he  prosiiiiied 
to  l)av(!  contracted  willi  ivd'erencc  thereto,  and  paynii'nt  must  be  mad.'  in 
accordance   therewilh;'  and  soon  tlie  (piesiion  of  the   projier  char; 


sician- 


awycirs,  and  mi'chanics,  evidence  of  nsMLie  is  adn 


:es  oi  |,liy. 
dl)le.''    'Y\w  propnr 

crit(;rioii   in   the  ass(!ssmei)t   of  a  '/xniilin.i  rmi-iiit.  is  the  usual  and  reasonable 
price  which  ol'.iers  have  r'(.'eived  for  similar  services.' 

In  Giilctl  V.  M((ii),!ifiii,^  i.lu'  plainliff  was  ;i  pi'iuter,  and  sonu'ht  to  reeov(  r  for 


prinlim;'  for  the  defemlawt  ;i  trau- 


onof  the  travels  of  A'la-'aar; 


'I'iie  wo^'k, 
out  oil  the 


it  ajipeared,  was  nearly  completed,  when  a  lire  accideiitidy  hri 

plainliff's  pniaises,  and   the  wliole  impression   was  consnmed.     Tiie  defeiidiiiit 


contended  that  the  work  was  not  e<'mnleli'd,  :n:d  slidVv-ed  that 


lIU'iiT 


cuiuslanc.'s,  accordiu'j;  to  the  (■nsli."n  of  ll 


!  i-a,ie,  111!'  1 


ilainliff  wa- 


to  be  i)aid  for  any  part  of  the   prinliim-.     Sd  1   Lord   M.wsi.'iki.d,  r.  ,J. 


<e  eir- 


The 


custom  of  the  tr;,de  was  verv  fullv  est; 


d.     It  w-i^ 


d  tl 


la! 


In'  [iriiitcr, 


oy  the  ireneral  a'-:;iL':e,  was  not  entitled  lo  he  pnid   fi)r  any  p:irt  of  ins  work  until 


the  whole  was  completed  and  delivered.  'I'his  custom  is  tin.'  law  of  the  ti',- 


as  far  as  it  extcMn 


it  coutri>ls  ll 


•al  law."     In  ]{■  d.yh"i  \ .  (' 


le,  and, 

'I'ledo- 


fendanl's  childrei;  enl,ered  the  pliitti; 


•h'li'I,  and 


namei 


I  t, 


i"re  one  niiartur 


and  a  f(!W  days  over,  when  they  hd't.  'I'll"  defemliint  n'f.Ted  to  pay  for  I'.ir  tiiiii; 
Ihecl.ildreu  wre  netu'iily  at  school,  but  the  plaiiil'dT  di'inanded  pay  for  tli-  ;  lar- 
ti-r,  cl;iim!i>'X  it  by  custom,  to  [jnive  \Vjdeh  \vituesf;es  were  iiilrodiiei'd.     Ih   \v;is 

The  custom  has  Ionic  prevailed  in 


saviirj;; 


hekl  ehtillt-d  to  recover,  UiMiKU,  J. 
this  Slate  of  char!,!; in'.";  by  the  'pmrlei-,  and  I  do  not  recollect  any  in^iauee  of  its 
havdii'.;'  been  conle -ied.  TIk*  c,iisi.):!i  i"  a  I'l  a-onjUl..'  o.ie,  an  1  oirjilit  to  !)••  -up- 
porled."  In  '/'Ikiukh' v.  O'i/ara,''' the  plaintiff  was  ihe  pruprielor  of  j  i.e>ss- 
pa|)i'r,  and  sued  for  his  cliarijes  for  the  inserlion  of  an  advertisement  tiie!.  in  a 
eiiiain  number  of  times.     When  the  adverli-eni'Ut  was  sent  to  the  ollie",  llie 


P 


I    ,il' 


'  seweli  V.  Ceni.  1  Car.  &  I'.  ;i(l-.>. 

-  l':i(lniij!;(\  V.  Siiiilli,  l:i  Allen,  I  !0.  I!nl  not 
if  itiiiea.sonable.  Melcalf  r.  Wold,  14  (Jray, 
210. 

■  Sowell  r.  (Icirp,  supra. 


L 


GooiKe,  11  Mil.  'I'M. 


'Miavcr    r.    \Vailsw.>rtli,    li)     I'icU, 


MO; 


Uoilire  r.  l'"a\or,  \'>  (',i:r. 


Ami  t;eo  lltinl 


r.  Oli^  ('!>.,  4  >U'li'.  4i;i  :  Naylor  r.  Ktill  l.'ivcr 
li-dU-Wiirks,  lis  Ma.-s.  :;iT;  MaM^T  c  Ninsfi, 
(i  Man.  ."k  (i.  !>;!.");  1  (^ar.  .V;  Kir.  Ill;  I'.iii man 
V.  (»akfor(l,5  l!nil.  &  N.  (i;i5;  Culterv.  I'ow- 


.'11,  -i  Sinii 


1,1 1.   Ca.'i    '1\  ;   (irav  r.  Mi  r'-:n, 


:1  .Jiii.i-.  rii.  1(17. 

■    i'lirx'll  r.  McC,)n('(!n,  '.>  Ala.   ;;S0.  llivcs 
r.    Miiyniliaii.   lin   111,    Kt!i;  Kwiii;;  r.   !'.•  iii 
elianip,  l  I'.ilili.    I'.Kl;  .inliiisini  r.  1m'  I'l'v-lur, 
:>{)  .N.  V.  ti'iii. 

Muna.v  i:  Ware,  I   r.ilili,  :iJ"i.     Mill    ace 
,S"niic'lt  ;•,  INeii'.e,  1  Mart.  (N.  ».)  lU'J 

•■'  1  Tann.  I,)S. 


liar 


■'i;s. 


1"  1  .Mill  lonM.  :m. 


l.j:.lL': 


Tf 


MASIKIi    AND    Si:i;\  \\T KMl'LOYKI."    AM>    KMfLOYKK.      JTH 


l'.i;!ii.rslii|i. 


.  rler  to  insert  it  was  ;i('ii('rai,  witlioiit,  (lirccfmiis  as  to  tlu"  lini"  «!:•  ti  ii  li.)!!]!! 
!ri  iliscontinncd.  Tlio  plaiiitin'  ail  Mittt^l  a  part  of  the  (Ifinaiul.  l)n!  coiiliiiiUd 
ilial  the  advertisement  slioiiid  liavc  Ijeen  sooner  diseonlintud.  In  rejily,  tlio 
jiliiiiitiff  offered  to  show  tliat  it  \vas  the  u<a_i;e  of  tiic  hu-^iiuss  to  insert  all  adver- 
li.-iiaenls  which  were  not  accompanied  by  special  insti  iictions,  nntil  an  express 
.irih'r  was  received  to  discontinue  them;  hnt-  the  trial  court  excluded  the 
(•viili'iiee.  This,  on  api)eal,  was  lield  to  l)e  ei'ror.  Wliere  iln-  parties  di-^aiireed 
;is  to  the  price  to  he  paid  for  liaidiii'4  hnnli''r,  evidence  was  admitted  to  show 
tlie  usiiid  ami  comni  ,  )rice  at  that  time  and  place  for  siiuilar  services;  also, 
I'viihiK^c  of  the  aino'  paid  to  one  or  m n'c  individuals  tor  drawing;  \ho  same 
kind  of  hiinber  over  !,.•   -ame  route  at  i!ir  -  iiu"  liuie.' 

A  cii>!oiu  amoii;^  n\ijlders  that  ouc-ihird  of  the  stipidated  price  for  hnildinpra 
hoiisi' is  payable  win  ii  it  is  covered  in,  one-third  whiui  the  (lo.ns  are  laid,  and 
nie-lliird  \vh(n  all  the  carpenter-work  is  completed,- i>  adiii:—i!»l  ■  ii  alt.^r  the 
mil'  of  law  tp.at,  nnd(,'r  an  entire  ciuilr.'.et  for  the  l.)iiililinu' of  a  liouse,  whiidi  is 
■  lixii'oyed  by  (ire  bctfore  its  coui|ili'tia;i,  the  workman  e'an  rei:over  nolhiirj,.' 
K  iileiiee  of  a  nsa^e  to  receive  native-s  temporarily  on  board  vessels  on  tlie 
coast,  of  AtriiM,  ;ind  to  lease  I  hem  at  convenient  \>iii\-^  in  She  I'ourse  of  the 
voy;eie,  payiit^'  them  at  the  liivc'relion  of  the  master, , is  ailmi-i-.)lile  to  (leLi'i'iiue 
till'  extent  of  the  liubilily  of  the  owner  of  a  vessel  when  -.ued  for  wai:;e.s  by  a 
native  employed  on  board  the  vessel.'  A  usaije  that  the  master  is  liable  for  his 
apprentice'''^  board  wtdh;  he  is  sick,  is  valid.-' 


m 


i 


:iis!!!lfii 


mm 


<j  !l!7.  Contract  not  wh'-jlly  p'^rformad  —  Qaantuai  Morult. —  In  L'ntO'i-  v. 
PoM'i-','/,''' where  it  wa--  held  that  where  a  sailor  \\'a-;  liii'i'd  f')r  a  full  voyage,  and 
il'iil  before  the  mid  thereof,  no  wa^es  could  be  cialnii'il  tdther  on  the  contrai't  or 
on  a  iivdiitinn  mrr-'it,  it  was  said  by  La\vi!I':n'ci;,  J. :  "If  the  plaintiff  in  this  case 
conlil  have  |)i'o\  ed  any  i:>iL;'e  lliat  persons  iti  tiie  sitiiatim  of  this  mate  are 
entitled  to  waj^es  in  proiiorlion  to  tin;  time  tl;ey  served,  the  plaintiff  ud,elii,  iiavc; 
ri'covered  accordinjj;  to  that  lis.'ue."  It  is  chjar,  therefore,  and  so  it  has  been 
n'pintedly  laid  down,  thai  a  ctuirt  may  infer,  or  the  jury  may  liiul  from  the 
p;niM'ul  and  known  |)raclice  and  usa^e  in  sti  i  case»,  (hat,  tlioiijih  a  contract  for 
pirseiiid  service  is  entire,  ycd  the  comi)ensa', .  /U  is  i)ayable  by  instalments,  or  is 
due  as  earned,  at  stated  iieriods." 

VH.  I'AirrN'i  nsiiii*. 

?  l!!s.  Powers  of  Pari;nors  may  depend  on  Custom.  —  It  is  a  scneral  principle 
ill  till' law  of  parlner>liip  that  one  partner  nni,\  bind  the  lirni  by  any  act  or  eon- 
tract  that  comes  within  the  ordinary  scope  of  the  partnership  business;"  and 


4 


'  Swalu  »•.  t;h(!ncy, -tl  N.  If. 'J:!'.'.  Ounniiisfliaiii    r.   MDn-ill,   10  .luliii-i.  '2(i:(, 

■  I'ailiiilfri' 1.  Kor.-'vlh. -Jit  Ala.  200.  ainl  ea<e>  eiteil ;  -'  -uiil'.r-   l.d.   Ca?;.    IT-.M. 

I'ailnil;;i:   f.   l''<y^yl\[,  siiimi;    Drake    r.  Ciiu  i.' itieiuly  tlie  niliiii?  ni  l'i'tt,y  f.  (iale,  i"! 

(iMii'c,  '»2  Ala.  tO't;  Urmiiljj   c.  Minlli, ;!  .Ma,  Ala.  171,  dial  cviiU'ticd  of  a  iisa;j:u  to  pay  /iro 

•'-''.  rc/ii   oa    ciUHi'ael.s  iif  liire  wln'ie  ,i  >ei-v:iiil 

^  >unilay  v.  (.ionloii,  I'.lalc'lif,  .t  II.    \iliii.  f.iil<  le  weij^  ilic  fall  lime  aureiil  oa.ev'ii 

Sti.i.  il    i)i'e\  eil,  ('(luld   iioL  lie    roe'iKi'i''a''l,  !■  Iiail 

KiMinon.s  r.  l.iii'il,  IS  Me.  •>:>[.  law. 

''  (iTcnii  l{c|i.  ;i'20;  'i  Siuith'.s  l.d.  Oils.  17.  t^ox  r.  Iliekinan,  S  il.  h.  (Jus.  'J(iS;  Haw- 


i^i 


;:! 


280 


IN    DIFFRRENT    KKLATIONH    AND    OCCUPATIONS. 


Paitmrship. 


5  't« 


111'  ■'■lll^ 


■■■i^] 


this  implied  iinthority cannot,  as  to  tliird  parties  witlioiit  notice,  l)e  limitcil  cvtu 
by  the  articles  of  ajrieement.'     But  the  ncMicssity  that  the  authority,  to  In;  vulij, 
must  be  exercised  within  the  ordinary  business  and  transactions  of  tliu  tlriii 
renders  the  question  of  nsai^e  an  important  one  in  arriving  at  tlie  liabilities  ol 
tlie  partnership  ni  any  case.     "Thus,  for  example,"  sayx  Judge  Stoisy.-  "  ju 
cases  of  factorai-c,  it  is  acoumion,  thougli  not  an  invariable  usage,  to  i;iiaiM!itv 
the  solvency  of  the  purchasers  on  sales  made  by  the  factor,  and  to  nceive 
tlierefor  a  commission   del  credere;  and   this  would   be  deemed  an  aiithoritv 
within  tlie  scope  of  a  partnership  formed  for  factorage  purposes,  aitliougli  it 
could  not  be  shown  that  the  partners  had  stipulated  for  that  power  in  their 
articles  of  partnership,  or,  even  if  they  had  excluded  it  by  such  articles,  if  it  w;t> 
unknown  to  the  principal  for  whom  they  were  dealing.'     So,  it  is  tiie  ciMiiiiiuii 
course  of  business  for  persons  engaged  in  the  purchase  and  sale  of  horsfs  to 
give  a  warranty  on  sales  made  by  them;  and,  theref(jre,  a  warranty  made  in  tiie 
course  of  such  business  by  one  partner  would  bind  the  paitiiers]ii|),  notwilh- 
standiug   the   articles   proliii)ited  such  warranty,  if  the  purchaser  were  uniic- 
quainted  therewith.     On  the  other  hand,  where  it  is  not  the  common  course  of 
the  business  in  which  a  partnership  is  engiiicd,  to  give  letters  of  guaranty  or  of 
credit,  if  one  partner  should  give  such  a  letter  of  guaranty  or  credit,  it  wiuld 
not  be  binding  on  the  firm,  although  given  in  the  name  thereof.*    For  the  like 
reason,  if  one  part  ner  should,  in  the  name  of  the  firm,  make  purchases  of  goods 
not  connected  with  the  known  business  of  the  firm,  such  purchases  would  not 
bind  the  i)artnerslii|j.     Tlius,  for  example,  if  a  parlnershii)  is  engaged  in  the 
mere  business  of  selling  dry  goods  by  wholesale  or  retail,  unconnected  with 
navigation,  a  purchase  of  a  ship  by  one  partner  in  the  name  of  the  lirni  would 
not  be  binding  on  the  other  partners  unless  they  should  assent  thereto.    So,  if 
persons  are  engaged  in  the  mere  business  of  tallow-chandlers  as  i/artncrs,  a 
purchase  of  a  cargo  of  flour,  or  of  pepper,  or  of  coffee,  or  of  other  thing-,  l)y 
cue  partner,  wholly  beside  the  business  of  the  firm,  would  not  bind  the  other 
partners.     But  if  the  articles  were  such  as  might  be  applie<l  or  called  for  in  the 
ordinary  course  of  their  Ijusiness,  (he  purchase  of  such  articles  would  hind  the 
firm,  even  though  they  were  unnecessary  at  the  time,  or  were  bought  contiarv  to 
the  private  stipulations  between  the  partners,  or  were  not  designed  to  he  u>(  J 
in  the  partnership  at  all.  If  the  vendor  was  not  acquainted  with  the  facts.    Tlie 
real  ditllculty,  in  many  cases  of  this  sort,  is  to  ascertain  what  contracts,  en-aiie- 
ments,  and  acts  are  properly  to  be  deemed  within  the  scope  of  the  particular 
partnership  trade  or  business;  for  these  are  not  exactly  the  same  in  all  sons  of 


..a 


T '  r 


ken  V.  Bourne.  8  Mce.  A  W.  "fi;?-.  Kastninn 
V.  Clark,  T),!  N.  II.  '2T(i:  Oain|il)i'll  v.  Doiit,.')4 
Mo.  ■A'iri;  l'\)xv.  Clifton,  (>  Uin^'.  T'.lv!;  Waldoii 
V.  Slicrl)iinio,  16  Jolins.  422;  Van  Keurmi  v. 
ParnieU'c,  2  N.  Y.  625;  Winship  r.  Uank  of 
tho  United  States,  6  I'et.  mi;  Cn^elcy  v. 
Wyclli,  10  N.  H.  1(>;  Konney  v.  Allvater,  77 
Pa.  St.  !U;  lUiKlKelt  r.  Weed,  119  Mas-. '.'15; 
Palilnian  v.  Tay'or,  7.")  11).  tiJ'.t;  Dc  I  ill  v. 
Howell,  42  Cnl.  f«(i;  Kir.st  National  Hank  v. 
Curixintor,  41  Iowa,  518. 

'  United  .StJiles  Itank  e.  r.inu'v..^   ^l.i-  m, 


170;  6  Pot.  r)21);  DaviH  v.  Itichardson,  15  Misp. 
49'.):  Ilayw.iiil  «».  French,  I'i  (iia\ ,  f'',;  Mer 
linn  '■.  Jaudon,  48  IJarlj.  4")'.i;  Mecliunic!)' 
Bank  iv  Fo.ster,  14  liarh.  ST. 

-  Siory  on  I'art.,  §§  lll-Ii:!. 

■•<  Sandiland.s  i-.  Marsh,  2  ISarn.  &  Ald.fC:!; 
Hope  V.  rust,  I  Kasl,  5:J;  Kx  parlo  NuHe,  J 
Glyn  &  J.  295. 

^  llopo  V.  Cu.st,  1  East,  .5:?;  fiiPH':  n  ". 
I.owndes,  3  ('amp.  478;  ll:i-lelia!ii  <■  V.  i.-, 
5  Q.  H.s:l:i;  Itrelli)  ,-.  Wdliani-.  I  l.^n  a 
fovcrruling  1!\  paile  (iaj.ium,  I.")  Nu.'-. '.^sii). 


i.  . 


\u^ 


i'ARTNERSHll 


281 


I'dWt  rs  of  PurtiuTs. 


1,1  Mis.-. 

; ;  MiT- 

i'li:iliirs' 

AM.fiT:;; 

.N..III',  J 

'ii'.'ii   ■'. 

V.   1..-, 

■..■.,, 'il 

T.  ■>«). 

trade  or  business.'  On  the  contnirv,  in  many  ciisi-s,  ri<?fits,  powers,  miil  antiior- 
itles  over  the  partncrsliip  propiTty  iuul  i):irtiu'rsiiip  fouccrns  exist  ciilici'  l)y 
usiij;t',  or  by  k^'K"'"'''  l^l'll■r^U.iuli!lII,  or  by  natural  itiiplicalinii,  wliicli  arc  wiiolly 
iiniinown  in  otliers.  To  ..uswor  tlu;  inipiiry,  tticn,  .-"atisrariorily,  it  is  not  fnouj^li 
to  show  tliat  in  otlier  tnulos  or  otlier  business,  certain  ri^rlits,  powers,  and 
ftuthorities  are  incident  thereto,  and  may  be  hiwfully  exercised  by  each  of  the 
partners;  but  we  must  see  that  they  appropriat(!ly  belonj;  to,  or  arc  by  usajie  or 
otherwise  imi)licd  or  incidental  to  the  particular  trade  or  business  in  whicli  the 
partnursliip  is  en}ia<ied."» 

In  Gnlhiway  v.  Hughes,'  where  a  member  of  a  partnership  enuajied  in  trans- 
porlin-i  cotton  by  boats  froni  tlie  upper  country  to  Ciiarleston,  contracted  to  sell 
as  well  as  to  carry  a  certain  lot,  and  also  to  brins  back  the  proceeds,  it  was  held 
that  the  firm  was  liable  upon  the  contract,  it  beiiiji  shown  that  it  was  the  nsa,!j;e 
ainoiii:  boatmen  on  the  river  to  iindert,al<e  the  sale  of  cotton  when  requc-ted  to 
do  so,  as  an  incident  of  the  carriaiic  and  as  a  means  of  proeurinji;  frei-rht.     The 
principles  applicable  to  the  case  before  the  court  were  clearly,  but  sonicwiiat 
oddly,  stated  by  .Foiinsox,  J.     "There  is  no  limitation  or  restraint,"  said  he, 
'Mipoii  the  associations  of  men  for  proper  and  le>ritiniate  purposes.     They  may 
be  exteiHled  to  all  the  pursuits  of  industry  and  enterprise,  and  they  may  be  lim- 
ited to  the  catchinii  and  sellinij;  of  oysl,t.'rs.     And  in  e\cry  association  the  part- 
ners arc  liable  for  the  acts  of  each  other,  exactly  so  far  as  they  are  necessary  to 
the  object  of  the  parnership,  and  no  further.     Two  men  unite  their  stock  in 
merchandise,  and  aijree  to  share  the  prollt  and  loss.     If  one  purchase  goods  on 
account  of  the  concern  the  other  is  liable,  because  that  is  directly  in  the  pursuit 
of  the  object  of  their  association;  but  if  one  should  take  upon  himself  to  build  a 
castle,  and  to  fortify  and  man  it,  there  would  be  no  reason  or  justice  in  subject- 
ing' the  other  to  the  expenditure  incurred  by  it.     He  is  not  bound,  because  he  did 
not  ussenl.  to  it.     Supposinjj  tlie  facts  to  exist  which  this  question  assumes,  the 
inqiiiry  then  would  be  whedier  the  obli.u;alion  to  sell  cotton  earried  on  freiiiht  is 
mplied  in  the  obli^:ation  to  carry;  for  in  that  event  alone  woiUd  the  |>artners  he 
liahUi  for  a  defalcation  of  one  in  the  sale     If  I  were  to  answer  this  inijniry 
without  reference  to  the  usai^e  in  re;;ard  to  it,  1  should  unhesitnliniily  pronounce 
that  it  did  not.     The  capacity  to  manajie  a  boat  and  to  strike  a  jjood  barjiain  are 
not  necessarily  identided.     In  tiie  ou(s  physical  strength  is  in  some  degree  indis- 
pensable; in  tli(!  other,  a  knowledge  of  trade  is  rccjuired.     One  who  handles  an 
oar  or  a  pole  with  dexterity  might  lind  himself  overmatched  in  u  market.     Or  if 
I  were  to  judue  of  this  matter  from  my  own  obsijrvation,  1  should  come  to  the 
same  conclusion.     The  sale  of  produce,  it  is  true,  is  somi'times  conllde<l  to  a 
boat  man,  but  this  is  rare.     Most  of  the  planters  condde  that  matter  to  factors 
ora^ieuts  residing  in  town.     Hut  this  question  can  only  be  resolved  by  usage. 
*    *    *    The  terms  used  to  desitriiiife  the  objects  of  the  partnership  between  the 
(Icfemlants  are  general,  and  express  no  more  tiian  an  association  to  carry  on  the 


'  I.ondiin,  etc.,  Sue.  r.  lliiKer.--town,  etc., 
Itiiiik,  :',«  I'a,  st.r.iS;  ■lliomixon  »-.  Franks, 
37  I'll.  Sl.:li7,  l.ivinjt-lon  r.  I'ill.-hurg,  . •!<•., 
H.C((.,2  (irant  (, 'us.  •.'!',• :  Maltby  v.  Uailrnatl 
''o.,  Hi  Mil.  .tJ'2;  Cailwalluiler  i\  Kroi'.-eii 
'.'.!  Md.  2(HJ;  Frccmun  t-.  Curiieiiler,  17  Wis! 
Itif). 


-  DirUiiisoii  !•  \  alpy.  Ill  llarn  .V  (;i-e>-<.  f.'S  . 
Uvetlrl  r.  William-,  I  !;v.(;!i.  (,■.>:!;  I|,,\\  tayiie 
V.  lii)iiriiu,7  Mee.&  \V.  'I.'.,  I':x  iiurle  Chip- 
pendale, 4  l>e  (i.  M.  &  U.  10. 

^  1  liuiloy,  063, 


m 


282 


IN    UIKFKRKNT    KKI.ATIi  >NS    AM)    OCCUPA IIONS 


l*;irliii  I'.-iiif) 


:1 


.    '■ 


]'' 


tnule  of  boatiiij^on  the  river  on  tlicir  joini  nccomil  ami  for  tlicir  Joiir  !).;., 'ilt; 
and  tlieir  leadiii?;  oljject  was  doubtless  the  profit  to  be  derived  from  'rr;i;!it>, 
Tiu'v  imply,  however,  .ind  necessarily,  all  the  inci(l(!nts  to  the  leadinp:  ''hi('ct. 
To  earn  freight.,  bouts  pi'operly  manned,  provisioned,  and  equipped  are  iiiilispi'ii- 
sal)ie;  and  licncc  llie  ol)li;j;ation  of  the  partners  to  share  the  eost.  of  the  hoiil,  the 
hire  of  hands,  pi-!)vi>ions,  rlc;  and  it  is  upon  the  faith  of  tliis  joint  lialiiliiy  that 
one  partner  obtain  credit  for  the  llrm  These  things  fall  so  directly  \\i;liin  the 
oljjer.ts  of  the  partnership  that  m  one  wotild  qiiesliim  their  joint  liahiliiv.  Ihjt 
in  llie  mixed  and  multifarious  tran-;:ielions  of  men  it  is  sometimes  dinimlt,  iu  a 
particniar  tran»;aetion,  to  determine  whether  it  l)(donj;s  to  llie  a(;l()r  in  \n<  indi- 
vidnal  or  i):niner>liip  character,  and  in  the  solution  of  this  dillieulty  1  Uii'-w  ef  no 
rule  so-  (!i'riain,  i)ractical,  and  safe  as  the  c.inunon  opinion  and  n*^:;;;!  uf  ihosc 
most  convei'sanf,  with  the  bnsini'ss."  This  case  is  much  like  \''arin'j  v.  Urad>i, 
with  which  all  llie  adjudif.'ations  on  the  sul)ject  are  in  accord.'^ 

§  115!).  Usages  as  to  Name  of  Firm.  —  Wlwre  the  parrner-:!iip  lias  not  ailopfed 
a  composite  n.une,  the  iiic!,  tiiat  they  did  business  iu  the  iiidividual  n:;ni  ■  of  ono 
partner  may  be  shown  by  usage.' 

5>  !  10.  Com;"non  Roporb  cannot  prove  a  Partnership.  —  Thonuii  it  wa-;  held 
in  a  !(  w  e.iriy  cases  in  New  York  that  a  i)artnership  niiiihl  be  pi-i)\'il  hy  evi- 
(1  ■nee  of  LiiMH  imI  reputation,''  those  decisions  were  subsequently  ovn  riil.'ii,'  ;ii:(l 
\\  i-  niw  settled,  boM)  in  that  and  other  SLates,  that  c;videnco  that:  ii  u,ik  iliu 
en. union  miderstandin'JC  in  the  locidily  that  a  partnership  "xi  ^ted,  is  n.)i  --ullii;' iit 
pro'jf  of  sncli  relai.ion."  \\\yk-  ihis  ol^lierwl;  e,  a  person  lii  '.louhiful  ii'tulii  nii,L;lit 
circulate  the  r(^i)oi-i  that  anoLlier  was  in  pariucr-Iii])  witli  him,  for  i!;c  p  irjiuse 
o. maintaining!;  his  credit;  or  his  crculitors  mi'zht  snreatl  the  reij'ri,  in  .nilcrto 
make  their  debt  nioi'e  .-eenre."  It  may  be  add.'d  that  ludthcr  i>  cudciiec  of 
reputation  at]nii<sibk^  to  |)ro»'e  the  dissolution  of  a  parLiiershin.^ 

In  Foyr:  v.  Af'.'.'/w'"",' two  defend  in!s  weri3  sued  for  the  \'alue  of  lahor  aiiil 
sei'\  ices  rend,  red  iiy  lim  plainlii'f,  and  on  ilr/  '.rial  tlicy  inirodiiccd  c\  iiKiiico 
Niiowini"-  the   manner  in  which  the   busiiioss  wa.->  carrieil  on   in  the   brick-yanl 


I  .liifr,  j).  ITS. 

-  i;il,'  :.nj,''  /'.  I'.iniiey.O  I'ick. 'J72;  IJoarfl- 
iii;m  r.  (,  i;'',  IT)  "''.ass.  :iol  ;  sinllli  c.  Odllnis, 
lir.  .Ma.--,  liss;  Oaytoii  ,-.  ll:".'.|y, 'J?  Mo.  r,;(;, 
As  Id  tlic  usage  of  111,1  U'l-  of  wliuliu;;- 
v('^.-els  eiiluring  into  |i;iniier.<lilp  in  their 
I'aicluvs,  anil  as  to  ii-,e;-i<-i  of  the  wlialliig 
business  ffonoraliy,  sou  I'.axlor  v.  Uoiliiuiii,  3 
Pick,  i;!.");  Th()iiiii-i)n  v.  Ila-.iiillon,  12  I'iclc. 
42.');  .Mjoriloi'ii  (Jo.  i>.  SiiIIiM', '2  I'al.  Sc.  A|)i). 
llOt};  Keuuiii;;s  r.  lioed  <iioiivilk;,  1  Taaa. 
241.  As  to  till!  usiiRos  or  llie  whaling  Irado, 
wlu'rc  the  i'o:ii|ie.ii~;n  ii);i  is  ij;i!ii orally  a 
bIkivc  ill  tlic  I'liclnie;'-,  s.'c  Switl  v.  (iillord, 
2  bowell,  110;  Smiii.Ii  v,  Lawrence,  2fi  (!oiiu. 
47(>;  llirli  V.  Kyiler,  10.")  Mass.  'iOii;  Shaw  v. 
Mitchell,  2  IMelc.  (>.->. 

'■'  l,c  ll'iy  ji.  Joliiisiiii,  2  Pet.  '200;Oiuario 
Bank  v.  llouucsbuy,  4d  ^.V.  515. 


<  Whiliioy  c.  sii'riiii.i,',  14  .lohn-.  215;  Cow- 
an r.  .i;irk.-oii,  Jil  .JdIui-.  IV..;  .M^'l'lu'i-'iiu 
r.  i;;ilhhiMie,  II  Wend.  'Mi.  Ami  >ei!  .MKiii  v, 
l;'-!:iiii.  It  ^  .    g.  >t  l{.  :\r.\ 

■'  see.  Ililliii.iy  r.  Mc.iiou?  :!1, -^O  Wcml.  .SI. 

6  r>r\.l(M  c.  T:i\  I'lr,  '2  Mar.  A  .).  :i'M;  IJrowii 
V.  Craiidall,  11  Conn.  '.'J;  Co  i\  iVi\  r.  I'nti,  18 
•  Pick.  41i;  I'itolier  r.  ll:iirous,  17  I'ick.  .Ml ; 
llii'k.s  r.  Cram,  17  VI.  4l'.i:  (■.•irllon  v.  l.mlhiw 
Woolloii  Mills,  -j;  vt.  i;t,;;  diafiou  I'.aiik  v. 
Al.ioro,  l:'.  \.  II.  '.I'.);  Carter  c.  Doierlass.'i  AIn. 
5()0:  CmiiiiiI.,.!!  r.  Ila-rnii^'s,  -ja  .\rk.  .'ilJ;  Scott 
r.  .;lo.>d,  !■;  Mc.  r.i'J:  ^  'irlair  c.  U'.i  "I.  '  ('al. 
iW;  l.ockridgo  v.  Wil-ou  7  .Mo.  .WO;  Ui)WCil 
r.  i;utherfoiil,fi0  111.  41. 

;  Ilrowii  r.  Craiiilall,  II  Conn.  (V2. 

8  (ioddard  r.  I'ratl,  lii  Ink.  i;2. 

»22N.  11.71. 


Ui;!. 


PAKTXKKSIIIP. 


28;j 


Partners  Bon  ml  l)v  Usasc 


in  which  the  phiiiitiff  !;il)or!'il,  as  l('ii(lin!j  to  show  tliiit  tlirir  inlcn-sts  in  the  yard 
iuul  l).i-iiu('ss  wcro  ci.iiri'ly  scjcumIl'.  Thi;  tlofcndanfs  then  offt-rod  to  show, 
\v!!ii'!i  offiT  flu-  court  porniiitiMl,  that  tlic  same  nu'!hoil  of  coiulucliii'jr  hiisi- 
„,,ss  was  ailoiiloil  in  other  yanls  of  similar  cxti'iii,  whcro  th(3  im^iMcss 
WIS  iMrried  on  1).\  nw  porson,  or  jointly  b\  two  or  miu't;  persons.  I'.m  the 
S!iji!-'';iiu  Court  con  .j.i'Ti'd  that  tlii.s  lall.rr  proai'  w.i.s  wrunu'ly  aJiiiiUcd. 
"This,"  s;iid  lO.vsi'i  \n,  J.,  "  \vo  cannot  reyrard  as  liaviu'j;  any  tendency  to  cstab- 
iisli  a  custom  or  iisa"^(!  by  whicii  in  lividiials  in  t'lis  kind  of  l)ii<.iii.'ss  arc  to  be 
jiiili  (1  in  partnci'siiip.  Itsliows  ihc  manner  in  w!iich  (hi;  business  is  done,  —  thai 
it  is  cinicd  on  in  '!:e  -aine  way,  \vhct-Iior  nmri'  or  h's-  arc  ciij.aucd  In  it,  —  but  il 
c:i!i  h:iv('  no  tendency  !o  li-c  tlic  cxi-linj;  1:011' r:!"!-  l)el'.viM')i  the  pa:'lies  ir.in-ac.t- 
iiritln'  l)ii>incss,  any  t'lirllier  tlnn  it  shull  apply  to  the  yard  in  reu;ird  to  whicii 
the  cvi'lcnce  is  !j;ivcn." 

lv,j  !'':ica  of  nsMue  may,  lio\vc\ei',  l)e  of  \';ilnc  in  (.'s!:ii)!!^!niv^  :\  [•■ir!  ncr-!iip  as 
to  tliii'd  persons.  .\s  helwecn  t'l  ">i-;i'li.''^,  t'lc  p:irlner>  c;ni  <miy  b- ,Mii'iderocl 
a-  siic'.i,  and  a  parlrtcrslii!),  j.i  :  :  •:,  (;aii  on  y  -  ',^1  "■  i  "■■■  liiere  is  :i  vuhnilary 
ji.:;^  ••'I'.cnt  onti-red  iiitn  for  1  i.i;  piir).)si';  and  turri' i-in  be  no  such  iliim;  as  a 
|i:ir;iK;r,^hip  ii/.'./r  .•n-  against  the  intention  of  liie  paiin  -  to  'lie  eoiiiiMc;,.' 


§  141.  But   U;-a;;o  may  be   controlling  as  to  Third  Persons.     -  \^   to  thin! 

pi'iNons,  jjarties  ic.iy  ht>  iiabie  a>  I'.n'iiiers  in  two  \s.iys  -  Oy, hriii'.;-  parintn's  in 
i;iet,  as  bco''  ceil  th"  Ml  elves,  or  l)y  ii'iidiii'^  t  hem  selves  oat  to  the  ji  i  il,e  as  snch. 
Ill  the  lir:st  (-a^e  the  relation-^hip  and  t.lie  lia'iilil.y  arc  aitpareut  and  plain,  while 
ill  the  second  the  law  does  not  permit  tiiem  to  deny  the  ridation  to  liii'  |)ri'jiidice 
:)i  Ihir.l  pan  :es,  and,  on  l.he  |u-iii';.iple  of  (.•siopjjcl.  Uiey  are  held  10  tne  >:inie 
liabilities  to  tho.se  who  have  acted  on  the  belief  of  the  parlnershii)  as  if  such  a 


'  Maivniaml  p.  Xmv  Voik  M:\n.  Co.,  17 
J'llms.  &:,■);  lle-.vell  r.  ll.irve.y,  r,  Ark.  'JTO, 
I'liric:-  ?■.  MeCliiri',  l.T  Wend.  187;  i.i.ckli-u 
V.  Harilonln"  ',!!  ,0  .\.  Y.  8;  f.MDniii  v.  M;n-- 
fhall,  liCoim.  :i);  l,i'-/ett  c.  Uy.le,  r>-*  N.  Y. 
r,i;  1Iin1j;-(,'s  ..\i)|)ciiI,  f,;!  1-ii.  lit.  27.!:  Km-.,'- 
Tiian  r.  SpuiT,  7  Ticl;. 'j;i.');  Cluinnol  r.  l'\is- 
^iU,  l(i  Oliii),  Kiii;  I' rocinan  v.  IMoDiiilii'liJ, 
4;!  >[.».  ;;.>1;  IJi^^liop  r.  (lei.ru't-'-.on,  CO  III. 
tSI;  l.:v.i>ii  V.  I'.ee-le.v,  '2  I'.i  :,^-.  N.  tl.  I;<.S; 
Wilson  V.  VVhitehe;iil,  10  Mim;.  &  \V.  5«; 
Kniamm!  i>.  DriutThn,  1 1  .\l'i.  I'.n.i;  IJunx'tl  r. 
(Swan,  17  Me.  ISO;  I 'lmk'Ii  v.  SI  yiiii;;-,  'J  C.  15. 
(N.  s  )  .'!,")7;  Ilal-lc.'id  i\  ScIimu'IzoI,  17  Jnhiis. 
■'Il;  r.niwn  V.  Tiipscoit,  (i  Meo.  &  W.  lit; 
(iunio  V.  Qninu,  !l  Suieil.  &  .M.  15.''):  liiinuii 
r.  l;;;iriim,  22  VI.  1-^1;  (Joule  v.  Hiiyv,  :inl,  I 
C'll.  liiri;  Smith  V.  Wri.i^lit,  5  SaiMlf.  IM; 
<.lil|iin  r.  lOnilerby,  h  IJarn.  &  Aid.  Ml; 
Muzzy  r.  Whiliioy,  10  JdIuis.  220;  Sillier  v. 
Ihim,  111  N.  Y.  :i21:  (.ill  r.  Kiilm,  (i  Sei^'.  & 
li.  ;;i7;  Kinr  v.  P.iilcr,  i;  (iill,  nil;  lliiwliii- 
i^im  r.  ('liiikp,  15  Mi!e.  »S;  \V.  2!)i ;  Sleeker  u. 
lli'n('kl(;li;nik,  ;5  iMiiii.  &  (.i.2.")!l;  Wilkinson  f. 
t'l;izi<'i'.  4  l':s|).  Iv2;  .\!:iir  r.  i  ;iriiiiie,  I  "l.'HI. 
A  ^1    ill),   (jlcddcs  V.    U  idliic.G,  -i  llli.  2:1); 


irt!-k('tli  r.  fUaiich:ird,  4  Rii^l,  111;  (iili'jnii  v. 
Liel'iii,  it  l'.;.-,u'.  '-' 17;  (jood-,'  V.  '  Ic'  ailiiey, 
10  Texas  i;'-.;  :;.>--  r.  D-iiikf.-,  -  n  .];,  n.-,, 
AIIlMI  v.  Dann,  !.">  .M  ■  ■;  V ;  I'l  ieo  v.  Ali'.\iui 
dcr,  2  fi.  (iree.ic,  IJ7;  MeArthur  v.  I.a  Id,  "> 
Ohio,.HU;  Kaiic)  r.  (  iMik,  1;  I'lc.k.  :;72  ;  liar 
mil  (\  .Small,  17  111.  ."ir"i;  Hiuke  r.  It.iiiiey, .; 
l.'ieli.  I,.  :;7;  (i-|<Mi  ?'.  \.s!,.)r,  I  '-umli,  :;11; 
bulling  r.  Cell,  ■.  ll'tM.  <  li.  .".,'.1,  '1  il'iyt-. 
Joiic.-,  3  Ire. I.  i,.  Itl;  Ki  llo.i;-.;  r.  Griswold,  12 
VI.  2'il  :  N'fWMia.i  i'.  l;(!;iii,  I  Kn-l.l.t;  Ste:irns 
r.  lliivi'ii,  111  VI.  H7;  M;i-oii  r.  l'.>tl(!r,  20  VI. 
722:  .McCanloy  r.  Ulevi  laud,  21  Miss.  .1;J8; 
^^(ll)l•e  s\  Siiiilli,  1;)  Al.i.  771;  Olin^lead  v. 
Uill,  2  Ai-k.  :;i*;;  Taylor  r.  rerkiiis,2i;  Wend. 
121;  Noraieiil  r.  Hull,  1  llnuedi.  :;J0;  ll.iwes 
r.  Tllliiigiiasl.,  1  (iriiy,  2-i;i;  Clia-i'  r.  I'.iirii'tt, 
•1  I'ai-e,  US;  J'ollor  v.  Mom-s,  I  It.  1.  .|:!0 ; 
WilKiii-on  )'.  .It'll.,  7  l.ce.^li,  l.'>;  l.owry  ?•. 
IJroidvS.  2  Mc.Cord,  421;  Hull  r.  Schiibprtli, 
.'  Md.  ;W;  Winshlp  ,•.  liaiik  of  Uio  IJiiileJ 
>Uiies,  r>  I'el.  .V2);  K.iinUe  ?'. 'I'liu  State,  4:) 
Ala.  1 1 ;  Ilii/.ird  v.  Ila/.  n  I.  I  sinr, ,  :;71  ;  l.anilt 
c.  (iioN.M,  (7  IV'irli.  ;!17;  l.iulin:!'  c.  .\lillikiu, 
47  111.  i;Si  Now. nail  c.  litsuu,  21  N.  II.  93. 


M 


1    ''■'{ 


^^;m 


L'Sl 


IN    DIFKKUKNT    RKLATIONS    AND    <  X  <  I  TA  riON.S. 


Principal  and  Agent. 


n.'latioii  had  been  actual.'  It  is  in  tliis  last  class  of  cases  that  (!vi<li!ii(:(  i>  coni- 
petciit  to  sh-  vv  such  a  "  holding  oiit"  by  the  party  sought  to  bo  cliai;j;(;(l  as  to 
estop  him  from  dcu.yin.g  his  liability. 

Thus,  ill  Gill  V.  Kulin,'^  tiic  tlrra  of  Gill,  ('anonge  &  Co.  entered  into  a  contract 
with  one  I'i'ter  Kuhn,  an  auctioneer,  in  which  it  was  agreed  betwc^on  all  the  par- 
ties to  follow  their  several  occupations  together  in  the  same  establishment  but 
without  any  copartnership,  which  it  was  expressly  agreed  should  not  exist,  it 
being  shown  that  it  was  their  practice  to  issu(!  bills  of  lading  and  give  reccipis 
containing  their  names  jointly,  and  to  issue  circular  letters  signed,  ««  Peter  Kiilin 
&  Son,  auctioneers;  Gill,  Canouge  &  Co.,  coniniis<ion  merchants,"  it  was  idu- 
sidercd,  in  the  Supreme  Court  of  Pennsylvania,  that  as  to  third  pen-sons  tluv  liaii 
undoubtedly  made  themselves  responsible  as  partu  rs.'  So,  a  hubit  of  advtrii>. 
ing*  or  making  out  bills*  in  the  joini  name,  or  (ii-<tributing  haiuibills  in  wlilcli 
the  name  of  the  defendant  appeared  as  a  partner,''  or  marking  merchandise  with 
a  flrin-namo,'  or  executing  contracts  or  conveyances  jointly,'*  may  be  shown  in 
evidence  for  this  purpo.se.* 


lHl^^«r^' 


W'F"^ 

ai 


t  5 


VIII.  Pkincipai.  and  Agknt. 

§  14'-'.  Agency  must  be  executed  in  Accordance  Avith  Usage.  —  If  it  is  tiie 
usage  of  a  place  that  a  mercantile  agency  should  be  ex(;ciiie(l  in  a  paiiimhir 
way,  the  parties  who  authorize  and  agree  to  exercise  tiiis  ^lieiicy  inipliidU 
incorporate  this  usage  into  their  contract."*    Thus,  a  broker  cannot  ijiiid  his  jirin- 


'  Vox  V.  Cliftitii,  I)  Hin;;.  "V>:  DickiiKoii  r. 
Valpy,  10  I5;ini.  &  Cress.  1-28;  Gooiie  r.  Ilm- 
rison,  5  B.'nii.  &  Alil.  117;  Spencer  ;•.  I'.illiiij:, 
3  Canii).  .'510;  Kx  parte  Watson,  10  Ves.  4,V.i: 
Parker  r.  IJarker,  I  IJrod.  &  B.9;  Bond  r.  I'll 
t.ird,  S  Mec.  &  W.  :;.')7;  Bonllekl  v.  Smith,  Vi 
Mue.  &  \V.  40,");  Waiigli  v. Carver, 2  II.  Black. 
2;5.i.  Iloarc  c.  Dawes,  1  Dong.  371;  YomiK  c- 
Axiell.a  U.  Black.  -242;  Ex  parte  Langdale,  2 
!{'ise,'144:  Mclv<!r  v.  Uumble,  16  East,  169; 
Martyn  v.  Gray,  14  O.  B.  (n.  s.)  824;  Kdinoii- 
8011 1'.  riioinpsoii,  2  Fosi.  &  Kill,  ."ii'hl ;  I'aliner 
V.  Piiikliain, ;!:!  Me.  .Vi;  Boweii  v.  IJullierford. 
60111.41;  Uebcr  v.  Machine  Co.,  12  Oliio  si. 
175;  Uuinbel  r.  .\bi:im-,  20  l.a.  An.  ."iiiS; 
Drennen  v.  Ilvuse,  41  Pa.  St.  :;0;  Dulton  c. 
Woodman,;*  (jush.  25.5;  Field  v.  Tenney,  47 
N.  n.51;t;  Wood  ».  Pennell,.'jl  Me. 52;  Bowie 
r.  .Mad<lov.  21)  Ua.  285;  Slierrod  r.  I.angdoii, 
21  Iowa,  MS,  Post  I'.  Kiinberly, ',1  Johns  470; 
I'otter  V.  (ireciie,  9  Oray,  :!0',);  Kice  v.  Bar- 
rett, 116  Alass.  ai4;  Cashing  v.  .Smith,  411 
Te.\as,  261 ;  In  re  Jewell,  16  Nat.  Bunk.  Keg. 
126. 

■  6S.:rg.  &K.  3;!3. 

.\nd  see  Iteiiedicl  i\  Davis,  2  McLean,  34S. 
1  Kx  parte  .Matthews,  3  Ves.  &  Uea.  125. 

■  Young    I).  Axlell,  2  II.  Black.  242;  Mc- 
Naniara  v.  Dratt,  33  Iowa,  385. 

"  Tuinlin  r.  (ioldsmilh,  40  Ga.  221 ;  Walcotl 
V.  <  'anlield,  3  (y'onn.  195. 


"  Penn  r.  Kearney,  21  l,a.  ,\n  21. 

■^  Crowell  f.  Western  Iteserve  Bniik.  :! 
Ohio  St.  406.  And  see  Coiiklin  v.  Barton,  « 
Barb.  4:!5. 

"  And  see  I'.emuHt  v.  Holmes,  32  Ind.  IM; 
Cragin  ?-.  Carl.-ioii,  ■:!  Me.  493;  Hall  c.  r.aii- 
niiig,  91  U.  S.  Kio.  So,  where  tlie  isMio  U 
whether  a  certain  house  is  a  hotel,  tlic  ni- 
tom  of  its  proprietors  to  so  adverliM-  it  is 
relevant.    Stringer  r.  D.ivis,  35  Cal.  •.',"). 

1"  Whart.  on  Ag.,  §  l.M;  Young  r.  Cole, 
3  Biii.g.  \.  C.  721;  Sutton  v.  Tatliaiii,  Hi  .\.l. 

6  K.  27;  Bayliffe  r.  Butterwonii,  I  Imii. 
445:  (iraves  v.  I.egg,  2  Huil.  .V;  \.  ■:v>: 
Pickering  i-.  Buck,  15  Kast,  3S;  |;i:i.iy  .. 
Todd,  9  C.  B.  (X.  s.)  :m;  Frank  r.  .].■:  Kn.-, 
22  Ohio  St.  .'577;  Schneliardt  f.  Allen,  1  Uail. 
359;  Greely  v.  Bartlell,  1  Grceiil.  172;  Uau- 
dall  V.  Kehlor,  (10  Me.  37;  tioodenow  r.  Tyler, 

7  Mass.  .lO;  Upton  c.  Siilfolk  .Mills,  4  Cu-li. 
.58{i;  Day  c.  Holmes,  10:!  Mass. ;«!(;:  Willaid  i: 
Buckingham, :!6  Conn.  ;>;l5;  Uaylijilil  Biiiiier 
Gas  Co.  r.  Odlin,  51  N.  II.  .16;  .'\lcKiiistry  c. 
Pcarsall,3  Johns.  319;  Smith  f.  T;-acy,  :;t; 

Y  79;  Kosenstock  i\  'riirmcy,  .'!2  ih\.  Wo, 
American  Central  Ins. Co.  v.  Mcl.an:itli;iii  11 
Kan.  .533.  And  see  Itussoll  r.  Haiike.v,  8 
Term  Uep.  12;  ISelelu'r  t'.  Par.-oii-.  Aiiib, 
219;  Caffrey  v.  Darby,  6  Vee.  496;  .Ma^.-ey  «. 
Banner,  1  Jac.  A  W.  241. 


:ul^4- 


'■]r 


I'UINCII'AL    AND    AGENT. 


285 


iJIfillli: 


Usagf  as  to  Excfutiou  of   Ajjcncy. 


cipal  except  in  the  inaiiiier  rccoLfiiized  by  the  custom  of  the  trade.  In  a  Peiin- 
■jylvania  case,  S.  <;avo  orders  to  H.,  in  the  employ  of  W.,  a  broker  in  Pilt.-biirn,  to 
buy  live  liuiidred  barrels  of  oil;  the  order  was  tel<'^r,i|)hed  to  W.'s  house  in 
Philadelphia,  who  teleRraplicd  in  reply:  "We  have  boiii^ht,  siibjt'et  to  iinnudiato 
(ontirmation,  500  barrels."  R.,  not  knowing  the  seller's  name,  iinnu  dlately 
nplicd:  "We  hereby  confirm  purchase,"  siuinin;;  S.'s  name,  but  not  having;  had 
any  further  communication  willi  S.  Ou  tho  next  day  K.  received  the  seller's 
name  and  sent  it  to  S.,  who,  not  beinjr  satisfied  with  his  standinjj,  refused  him, 
anil  rtfiised  to  siirn  a  contract  or  accept  the  oil.  It  was  proved  that  the  custom 
of  oil  (lealers  was  that  the  seller's  name  must  be  submitted  to  the  principal  for 
confirmation,  and  that  wlien  names  were  jriven  and  rejected  the  sale  failed.  Tlie 
ciMirt  held  that  there  was  no  evidence  of  a  contract  on  whicli  the  seller  could 
rocovcr  from  S.;  that  the  broker  could  not  bind  his  principal  except  in  the 
niaiinor  ic"o,2nizcd  by  the  custom;  and  that  Il.'s  confirmation  was  without 
auliiority.'  Ihxhiaoit  v.  Davies;^  tried  before  Lord  Eli.kmiokouch  in  18!0,  was 
an  action  for  not  dcliverinj^  tol)acco  sold  by  the  defendant  to  tlie  plaiuliff  l)y  bill, 
thronirh  the  medium  of  a  t)roker.  The  defence  relied  upon  was  that  the  defend- 
ant had  not  ratified  the  contract  entered  into  by  tlie  broker.  Ou  the  7th  of  July, 
ItiO-',  llic  broker  wrote  out  the  bouirht-and-sold  note,  and  sent  a  coi)y  to  each  of 
thorn.  The  defendant  made  no  objection  till  five  days  after,  wlieu  he  was 
called  upon  to  deliver  the  tobacco,  then  saying  that  he  was  not  satisfied  witli  tlie 
siifllciency  of  the  purchaser,  and  refusing  to  perform  tlie  contract.  The  di  fend- 
ant's  counsel  contended  that  the  person  who  sold  goods  by  a  broker  reserved 
to  himself  the  power  of  ratifying  or  rejecting  the  contract,  as  he  should  be 
satisfied  with  the  credit  of  the  purchaser,  and  offered  to  prove  that  such  was  tlie 
usage  of  trade  in  tho  city  of  London.  Lord  lOi.i.ENnoiiot  (ai  was  at  flrsl 
inclined  to  think  that  the  contract  concluded  by  the  broker  must  he  atjsolute 
unless  his  authority  was  limited  by  writing,  of  which  the  purchaser  iiad  notice, 
but  the  si)ecial  jury  found  lliat  unless  tlie  name  of  the  purcliaser  liad  been  pre- 
viously communicated  to  the  seller,  if  th(>  payment  was  to  be  by  bill,  the  seller 
was  always  understood  to  reserve  to  liiiiiself  the  power  of  disapproving  of  the 
sufflcicncy  of  the  purchaser  and  uimulling  the  contract.  Lord  Ki.LKMsoitouaii 
then  ruled  that  the  us.age  was. reasonable  and  valid.  But  he  clearly  thouglit  that 
the  rejection  should  be  intimated  as  soon  is  the  seller  had  had  time  to  inipiire 
into  the  solvency  of  the  purchaser.  Five  days  seemed  to  him  a  longer  perioci 
than  the  exigency  of  commerce  would  permit.  He;  left  it  to  the  jury  to  say 
wlicther  it  was  according  to  usual  commercial  practice  to  reject  a  coniraca  so 
long  after  it  had  been  entered  into.  The  jury  considered  that  five  da\>  was  too 
long,  and  found  for  the  plaintiff.  Ami  it  seems  ihat  if  an  ageiil  ■oiiduels  his 
business  according  to  the  usages  of  the  trade  he  will  be  exonerated  from  all 
responsibility,  even  if  it  could  be  shown  that  by  a  deviation  from  tiicm  he  might 
have  acted  more  beneficially  for  his  principal.''  And  as  to  the  incidental  powers 
iif  agents,  i'u  may  be  stated,  generally,  that  they  result  from  the  particular  busi- 
nt'ss,  employment,  or  character  of  the  agents  themselves.     "Whatever  acts," 


it 


:•!, 


'  Sumni;i'  v.  Stewart,  61)  fa.  .St.  321. 
'-  2('ami>.  ."iilO. 

^  story  (in  Aj?.,   §  Wi;  Miiore  v.  Mourgue, 
fmvii.  ISO;  Smith  c.  <  ■oli»;;,ni.  ■.'  Term   Hep. 


188,  note  a;  Warwicke  y.  Voakes,  I'eake  N.  1*. 
()8;  Itiis-icll  t'.  Ilankey,  (i  Term  Rep.  12; 
Belcher  v.  I'ursoiis,  Ainb.  219. 


I' 


ir 


PI 


I  I 


■  1  > 

^i 

.<! 

■ 

I  *■ 


;;•)!) 


i\     DIKKKIiKNT    UKrwVrii-NS     AM)    Ol  XUI'ATIONS. 


Priiicipiil  .nil  Airciit. 


sjiys  Sroi;..'  "  iii'c  iiMially  (lone  by  such  clii^-cs  of  uijonts,  wh.ilcvcr  riiilits  are 
ii.suiilly  0X1  r(!is(il  liy  t.hcm,  and  wliuUivor  diilios  are  usiiully  uUai'liud  to  ili'.-m 
all  such  nets,  rights,  and  dut:os  are  deemed  to  be  incidents  of  ilie  .uitliMrnv 
condded  to  tliein  in  tlieir  parliciilar  bn>iiii<'<s,  employment,  or  eli:i;  leier.  'I'iicM 
Indeed,  are  in  some  eiises  so  well  known  and  so  well  delined  in  the  coiiiiikhi 
ncfjotiations  of  eominerc<i  and  l)y  Ihe  fniiinent  recoj^nilion  of  courts  of  jiisticf 
as  to  beeoiiie  matters  of  lei^iil  i:ilrndment  and  iiifei'c;nce,  and  not  to  be  open  for 
Inquiry  or  cdniroversy.  In  >>i ,.  r  eiises,  indeed,  they  iiiuy  be  fairly  open  as 
matters  of  fact.  U>  beesliililislu'd  hy  suital)le  prooi's.''  Mr.  Wii.vuioN  states  tlu' 
rule  very  eon<'i.-ely  thus:  "  Kacli  particular  kind  of  brokora.iie  niUNt  lakeit.>;  tyii' 
from  tite  nsa-i-es  of  the  business  with  whicii  it  deals.  A.  wants  to  sell  coiloii,  |.  r 
Instance,  and  M.  wants  to  buy  cotton,  and  C.  is  tiic  l)roker  throiiuh  wiioin  Vm 
one  buys  and  t!ie  other  purciias.s.  Hut,  liow?  As  will  presently  be  ^ecii,  ilic! 
contract  is  reduced  to  a  few  words,  rejjresentinij  a  transaction  wliii  li  re>ls  iiimjii 
the  nsai^e  of  the  particular  business,  and  tluit  usaije  would  be  part  of  tli«' con- 
tract, shoidd  tiiat  contract  be  written  out  in  full.  It  is  not  wriii'  'i  out  in  full, 
beiiiij  only  th<!  notes  of  a  contract  incorporatinj?  this  usa:j;e.  Jleuce  il.  is  tliat 
when  the  i-oiitraet  to  which  the  broki^r  binds  the  parties  is  under  iu'/e^tiiration, 
it  is  admissit.ie,  in  order  to  show  what  tlie  contivict  \vas,  to  prove  a  u.sage  o!'.  tlu- 
particular  busim— s,  so  !'ai  as  lliis  usage  is  fair  and  n.'asoiudjle."''' 

«i  14;?.  Authority  ol  A(?ent.  —  Authority  given  to  a  LTUeral  agent  cannet  br, 
limiti'd  by  secre;  instrueii(>n-<  ^^o  as  to  affect  third  inn'iies  dealMii;-  ^v;t!l  liiiii.' 
liiit  wiiat  his  autiiority  really  is,  tind  llu'  limits  of  tlia'.  aiitlunity  in  si)i  ina!  ea-^cf!, 
will  be  found  to  depend  in  no  small  degree  upon  the  custom  of  the  trade  iiu 
follows,  or  of  the  place  in  which  his  business  is  transacted.  Many  ca^es  ree:);;- 
nize  this  principle,'  whose  apjili-ration  will  be  better  seen  in  the  next,  few  sections. 

The  authority  of  an  a-^i  nt  to  sign  and  indorse  negotiable  paper  may  be 
inferriu),  even  where  no  express  iuiiliorily  existed,  from  the  usage  of  tlif  agnit  to 
makesucli  papei  with  the  knowledge  and  assent  of  the  priiieipal.^  IJut  ai!.'  rity 
to  sign  as  maker  or  surety  cannot  be  luferreil  from  a  general  usage  to  iudorsu.' 


>  story  on  Ar,  §  !(«!. 

"  Whan,  on  A.i;.,  §  ti!)B.  And  see  Rapp  v. 
Gray.s<in,2  I'.hiekf.  i:iO;  .Sumner  v.  Stewart, 
G9  I'a.  St.  :!J1;  Kiaft,  r.  Kancher,  44  M<1. 'JtH; 
Colkc'tr.  Kllis.  10  Phila.  :{75. 

I  Me.Oonihie  r.  Uavies.tl  Kast,.V2S;  Patter- 
son r.  1'ash, -J  Stra.  UTS;  I'ickorin;;  /•.  I5u8h, 
l.'^i  Kast,  :!8;  Allen  v.  Ogilon,  1  W  .i-li.  <'.  Ct. 
174;  Bryant  r.  Moore,  2(;  Me.  S-t ;  Fi!/,-ini- 
nions  r.  .losliii,  21  Vt.  l'>!>;  Minter  c  I'li.rirlo 
If.  Co.,  41  Mo.  no:!;  Duke  of  neaufoil  v. 
N'celd,  1'2  CI.  &  Kin.  SiJO;  Fltzherborl  v. 
Mather,  1  Term  llep.  12;  ,Iolni.«on  c.  Jones. 
4  IJarlt.  :!(>".) ;  Whitehead  r.  'ruekell,  15  East, 
400;  Kenn  r.  Harrison.  .'5  Term  Itep.  757. 

^ 'Whitehead  v.  Tuckett,  15  Eaut,  400; 
Baines  r.  Kwinff,  L.  U.  1  Exch.  320;  Diekni- 
son  V.  liilwall,  4  Camp.  279;  Hammond  v. 
Varian,  54  N.  Y.  iJiKS;  tireen  v.  Dihbrow,  7 
I.,an6.  ;581 ;  ."ill  N.  ^.  :i;i(>;  lirown  r.  Arnott,  (! 


Watts  &  H.  402;  Fay  v.  Kichtiio.id,  4.!  Vt.  23; 
Dingle  r.  Hare,  7  (.'.  B.  (n.  s.)  !.;>;  N  ihlcUoro 
r.  (;lark,  (IS  Me.  S7;  Haven  v.  WciUunrlli.'i 
N.  II.  '.):!;  Morris  i .  liouen,  K  S.  H.  Ill);  An- 
derson f.  Kiieeland,  0  Cow. . "St ;  The  lleiiilnli 
Hudson,  7  Law  Hep.  (N.  s.)  !):!;  Wilfick- f. 
Phillips,!  Wall.  jr.  47;  McMorri.s  r.  simiisdii, 
21  Weiid.e.lO;  Kaston  v.  Clark,  ;!5  N.  \.-r,:. 
White  V.  Fuller,  67  Barb.  2(17;  BucUnam  <■. 
('haplin,  1  Allen,  70;  Coldsmitli  i:  M.iiiluMin, 
109  Mass.  187;  Greentlcld  Bank  r.  (rafl^.  i 
Allen,  2()'.l;  (/orbett  r.  fmlerwu  nl,  s,;  111.  :-.'l ; 
United  states  I,ifc  Ins.  Co.  c.  Vilvaiicu  ("., 
80  III.  54:);  Oldershaw  r.  Knoles,  1  liradw. 
fiS;  s.i:  <>  Bradw.  :!25;  liieh  ;•.  Johnson,  (il  III 
21(i;  Wallace  v.  Hradsliaw,  (i  Dana,  ^!f2. 

'  Moore  V.  Bank  of  the  Metropolis,  13  I'ei. 
:UYl;  True  t'.  True, ;?:?  Me.  ;!()7. 

<>  Early  v.  Reed,  6  Hill,  12. 


rUINCll'Al.    AND    Alil..\r 


2.->i 


rs:i''(  s  of  tin    Slock  Kx(;Iiiin;'(! 


A  L''ii('ral  scllini;-!i.;i''i)t  csiniiol  liiml  lii-  priiicipals  by  a  warraiily  that  flour  sold 
In  him  for  ttiem  will  kci'])  >uci'i  (jiniir^  .1.  M'a-voya'^c,  110  iisaui'  to  tiiat  effect 
h('iii'4  proveil.'  Auiliority  to  remit  to  iii^  principal  hy  l<ill,-^  aiul  for  clerks  of 
vtt'Miiiboats  to  siuii  neirotiilili'  p'ipcr  for  tiie  neci'ssary  expense's,'  may  he  >lio\vii 
hv  cviileiici' of  custom;  and  llic  iisami' of  mercantile  houses  m.iv  he  proved  to 
show  that  a  clerk  had  no  aniliority  to  m  ilu;  ceriain  contracts.*  So,  a  sulr-iiinte- 
broker  may  he  shown,  hy  ihe  cnsioni  of  the  (Hciip.ition,  to  warrant  thai,  the 
])crsoii>  offere<l  hy  liim  are  not-  defaulters.-'  But  a  Lceneral  iisasi!  ainonii  horse- 
(It'Mii  IS  not  to  warrant,  iindei-  certain  cireiiiiistann  s  cannot  he  set  up  to  defeat  a 
warranty  liy  a  servant  liavlnu;  an  impli(Hl  a'nthority  so  to  do.""' 


!iil 


iHI:' 


f' 


i\wf 


m 


i  \\i.  U^-^ag-es  of  the  Stock  Exchange. — The  nil  ■  tlial  He-  parlies  are  pre- 
^iiiiied  to  a^ria;  that  a  mercMniik'  a'j;eiicy  shall  i)e  exercised  accoi'dini^  to  ilie 
ii«i;iL;es  of  th(!  trade,  is  supporit  d  l)y  many  cases  which  have  arisen  on  the  l.'nir- 


<li  Stock  Kxchanue.     A  few  instances  will  siilllce. 


a  siock-hroker, 


li.  Iiiiir  hoiids,  and  paid  him  the  amount;  tin;  l)onds  w  re  ;i!i(r\vards  disc(/\  ii-ed 
to  In  worthless,  whereupon  \.  took  thein  ha<'k  without  notice  to  !i.,  and  ri  im- 
Imrsi'd  the  purchaser.     Tlu;  custom  of  the  St(K;k  lOxclianiAc  p(;rmi(tinu"  tiiis,  A. 


•,'is  allowed  to  recover  the  amount  from  P. 


ALraiii:  A.  anthori/.cid  15.  to 


for 


.iiii  twenty  railway-share 


1'.  sold  ilieii.   i.o   (!.,  another  hroker, 


Ti 


^har( 


c)l  heinj; 


li\'.'red  on  that    I'.iv,  (".  houiriii.  iweiilv  other  >har(;s  tit   Ihemaiket 


i'ice,  and  claiini 


diff. 


he! ween  the  contract  pric'c  and   ihe    markei 


jirii'r 


I{.   paid  him   the  difj"eren( 


d 


!i.  ill!  action  for  money  pani,  iw 


recover  thi-<  .sum.     It  was  proved  to  i)v.  the  u.^a-i'  ainoii^  h 


rs  to  he'  re.-.pon 


sihle  to  each  o 


upon  these  contracts,  and  IJ.  was    iherefon;  held    liahK 


A^'aiii:  A.,  a  hroker  and  m(,'niher  of  tlu-  Stock  Kxchan.iie,  on  Au.niist  28,  HS.-jII,  at 


tllr  1'. 


t  of  li.,  hou.ijht  for  him  tw-'iity 


r((s  of  hank  stock,  to  hi;  paiil  for  on 


.|ik',- 

ilie  "settlement  day,"  winch  was  on  Septemher  15th,  and  duly  forwarded  him  the 
usual  brokers  contract  iKjte.  The  hank  stop;ievl  payment  on  S(|)t(Mnhcr  .".d,  and 
nUiinately  becaino  bankrupt.  On  the  11th  IJ.  repudiated  the  transaction,  and 
Save  A.  notice  not  to  pay  the  |)i'ice  on  his  account.  A.  haviim  been  compelled, 
u(:c(H'dini;  to  the  rules  of  tlu;  Slock  Kxcli;inu;e  to  pay  for  the  shares  on  the  .settle- 
iiU'iit  il;,y,  sent  H.  the  certilicates  and  transfers,  and  upon  his  decliniii.i?  to  accept 
tiieiii,  sued  him   for  the   money,  and   it  was  decided    that  he  was  entitled   to 


recover. 

to  purchase 


Au;ain:   I?.,  a  London  mercliant,  em; 


d  \.,  a  broker  in  Liverpool, 


ome  wool.  A.  negotiated  a  sale  hy  ('.  to  A.  of  certain  bales,  ihdiv- 
crahle  ;it  Odessa,  "  Ihe  name  of  the  v(!sse  to  hi'  dechiri't,!  as  soon  ;ls  the  nools 
were  shipped.'"  In  this  transaction  A.  act(!(l  for  both  IJ.  and  C.  By  the  custon» 
of  Liverpool,  where  a  < milract  contiiined  a  stipulation  that  notice  of  an  event 
should  he  ijiven  by  the  vi'iidor  to  the  vendee,  it  was  usual  for  the  vendor  to  s've 
the  notice  to  the  broker,  who  commimicated  it  to  the  vendee.     It  was  held  in 


J 


'  Upton  r.  .Suffolk  County  >Iills.  II  Cusli. 
5S7;  Wilt.-hirec.  Sims,  1  Cnuii.  'J-'s. 
■  I'otter  c.  IMorliiiui, :!(  u-li.  ;;S4. 
^  Moltr.  ll;ill,  II  ti;i.  117. 
*  Jones  r.  Win-iier.  II  Coini.  10. 
■'  Lebanon  r.  IIe.uh.47  N.  [1.  :'»"):(. 
«  Howard  r.  Sheward,  L.  K.  2  C.  P.  148. 


"  Vouirj.  r.  Cole,:!  I'.ing.  N.  C.  724  ;  Child  y. 
Slovlcy,  ,S  'I'ei  in  liep.  OIO. 

>■  l5:iylitto  r.  I'.nltirworth,  I  Fxch.  426. 

3  Tiiylov  r.  Str;i> ,  ■.'  c.  1$.  (n.  s.)  175.     And 
Bce  Sniton  r.  Tailcini,  10  Ad.  *  K.  '27:  Smith 
r.  LliKlo,  ."i   C.   P..   (s.  H.)  osT:  *tray    r.  Kus 
sell,  '^'.l  L..L  (q.  I$.)  27i>;  Lloyd  r.  ciilbert,25  L. 
J.  (Q.  I$.)  74. 


r:M 


'I^ill"* 


2.S.S 


l.\    DM'FKIIKNT    UKI.ATIONS    AND    t »(  (  i  I' \1  !t  >.\ ,^. 


I'iiiui|i:tl  anil  Ajiriil. 


this  case,  both  in  the  Court  of  Kxolieqncr  and  the  Exchequer  Chamber,  tlmt  B. 
was  bound  by  the  usaj^e,  and  that  a  notice  by  C.  to  A.  of  I  lie  names  of  the 
vessels  on  wliicli  tlie  wools  were  shipped  was  a  performance  of  lliat  ><ti|iiilation 
although  A.  omitted  to  comnuinicate  tlieni  to  (;.'  Ajiaiii:  A.  omploytd  ».,  t. 
broker,  to  sell  two  hundred  and  fifty  siiarcs  In  a  company.  On  the  day  alter 
receiving  the  authority  B.  sold  one  liundred  and  nine  shares,  an<i  on  the  follow- 
ing (lay  one  hundred  more.  On  the  latter  day,  butafler  the  sale,  A.  told  H.  tliat  he 
had  made  amistalie,  and  intended  to  sell  only  fifty  siiares,  and  was  told  that  the 
sales  could  not  be  avoided.  A.  left  the  matter  in  II. 's  liaiids,  to  do  the  In  ^t  he 
could.  By  tlie  usages  of  the  Stocli  Exchange,  if,  upon  a  sale  of  this  description, 
the  vendor  was  not  prepared  to  complete  his  contract,  the  purchaser  niiulit  Im^ 
the  requisite  number  of  shares,  and  the  ven<l()r  was  bound  to  make  up  t!iu  loss, 
if  any.  The  purchaser  in  this  case  having  bought  at  a  loss,  B.  paid  the  dlffcr- 
en<;e,  and  tlien  sued  A.  in  assu)apsit  for  money  paid.  He  was  allowed  to  recover.' 
These  cases,  and  others  cited  below,  show  the  law  to  be  well  settle  I  that  wlien  a 
contract  for  tlie  purchase  or  sale  of  shares  has  been  entered  into  lietuoen 
individuals  through  their  respective  brokers,  or  with  the  inlervoiiliuii,  a.s  pur- 
chasers or  sellers,  of  jol)bcrs,  members  of  the  Stock  I-'xohange,  the  lawful  usages 
and  rules  of  the  Stock  Exchange  arc  incorporated  into  and  hecouK!  part  and 
parcel  of  all  such  contracts,  and  the  rights  and  liabilities  of  iii(ii\  idiiaN,  parties 
to  any  such  contracts,  are  determined  by  the  operation  upon  llie  contracts  of 
these  rules  and  usages.' 

§145.  Delegation  of  Agent's  Authority. — The  maxim,  Ddegata  pntrsta? 
non  potest  delegari,  expresses  an  imt)ortant  principle  in  the  law  of  agency.* 
One  who  has  authority  from  another  to  do  an  act  mu-j|  execute  it  liimself,  and 
cannot  delegate  his  authority  to  another;  for,  beinga  eonlideiice  or  trust  I'-posod 
in  him  personally,  it  cannot  be  assigned  to  a  stranger,  whose  ability  and  integrity 
might  not  be  known  to  the  principal,  or,  if  known,  might  not  be  selected  by  him 


51  ■■ 


'  Greaves  v.  Legg,  11  lOxijh.  (ili;  2  Hurl.  & 
N.  210. 

8  .Sutton  V.  Tatham,  10  Ad.  &  E.  27. 

'  Evans  on  Ag.,  chap.  2,  §  2;  Robinson  v. 
Mollctt,  L.  R.  7  II.  L.  802;  Maxtod  v.  Paine, 
I*  R.  4  Exch.  210;  Taylor  v.  Stray,  2  C.  B. 
(N.  8.)  175;  Smith  v.  Undo, 5  C.  B.  (s.S.)  587; 
Piiigeon  V.  Hurslem.a  Exch.  465;  Rosewarne 
V.  Billiug,  15  C  B.  (N.  s.)  'M6;  Jessopp  v.  Lut- 
wyrhe,  10  Exe.h.  614;  Knight  v.  Chambers,  15 
C.  B.  562;  Beoton  v.  Beeston,  1  Exe.h.  Div. 
13;  Bowring  v.  Shepherd,  L.  It.  6  Q.  B.  ;'.09; 
Grissell  v.  Bristowe,  L.  R.  4  C.  B.  36;  Coles 
V.  Bristowe,  L.  R.  4  Ch.  :i;  Duncan  v.  IliU, 
L.  R.  6  Exch.  255;  L.  R.  8  Exdi.  243. 

*  Burial  Board  v.  Thompson,  L.  R.  6  C.  P. 
467;  Baker  v.  Cave,  1  Hurl.  &  N.  678;  Alex- 
ander ('.  Alexander,  2  Ves.  640;  Ingram  v, 
Ingram,  2  Atk.  88;  Hamilton  v.  Koyse,  2  Sch. 
ALef.  330;  Attoruey-Ueneral  v.  Benjamin, 2 
Ves.  643;  Hawkins  V.  Kemp,  3  East, 410;  Cole 
r.  Wade,  16  Ves.  27;  Howes  v.  liall,  7  Barn.  & 
CreiB.  481;  Cockran  v.  Irlaui,  2  Mau.  &  fScl. 


301 ;  Doe  v.  Robinson,  3  Binp.  X.  C.  (iTT;  Cat- 
lin  V.  Bell,  4  Camp.  183;  \Val>h  t'.  South- 
wortli,  0  Exch.  156;  Wilson  c.  Tliorpe,  K  .\l3e. 
&  W.  721;  Little  r.  Newton,  •->  Scott  \.  II 
509;  (Jreat  Northern  R.  Co.  v.  Eastern  Coun- 
ties R.  Co.,  6  Kl.  A  Bl.  327;  Warner  v.  M.inin, 
11  How.  209;  Bocockr.  I'avey.sohioSt. '.'TO; 
Gillis  V.  Bailey,  1  Fost.  149;  lluuleyr.  James, 
5  1'aiKe,  323;  LoekoVs  Appo.il,  72  I'».  St.  4'.tl; 
I.yon  c.  Jerome,  ■!(>  Weml.  4*%") ;  Einersoa  r. 
rrovidence  Hat  Co.,  12  Mass.  241;  Ex  p.irte 
\Vin.sor,  3  Story,  411;  Smith  v.  SHblelt,  28 
Texas,  163;  Bis.sell  v.  lioden,  34  Mo.  61!; 
Loomis  V.  Simpson,  13  Iowa,  532.  "A  factor 
cannot  delegate  liis  einployniei<t  to  aiioilier 
so  as  to  raise  a  privity  between  that  (Jilicr 
and  his  principal."  Solly  v.  Ratlil)iiiie,  J 
Man.  &  Sel.  299;  Cockran  v.  Irlam,  2  Mau.  A 
.-■el.  301.  The  reason  of  the  ruie  is,  lli.ii  it 
is  a  trust  and  confidence  reposed  in  (lie  iinl 
ity  and  integrity  of  the  person  aullmiizfJ. 
Warner  v.  Martin,  11  How.  209. 


w 


PKINCIPAL    AND    AUKNT. 


•26\i 


Sulos  on  Credit. 


1   ^Li'.l 


(or  sucli  a  purpose.'    To  the  general  rule  that  power  given  to  one  person  to  do 
;iii  act  ciiunot  be  delegated  to  another,  ther^  are  many  exceptions ;  -  but  it  is 
important  here  to  note  only  that  usage  may  change  a  case  which  otherwise  would 
Ix'  <;overued  by  tld.s  maxim.     In  one  case,  it  is  true,  it  was  reuiarked  by  Lord 
Ki.Dox  tiiat  '♦  tiie  doctrim-  is  very  dangerous,  indeed,  that  if  an  auctioneer  is 
aatliorized  to  sell,  all  his  clerks,  wlien  he  goes  out  of  town,  are,  in  conseiiuence 
of  any  usage  in  that  business,  agents  for  the  per.son  who  authorized  him."» 
Hut  in  Moon  v.  Ouardianit  uf  the  I'our,*  a  custom,  in  the  case  of  an  architect,  to 
employ  a  surveyor  to  make  out  the  quantities  of  a  building  proposed  to  be 
irtcttd  was  held  valid,  so  as  to  render  the  employers  of  the  builder  liable  to  tlie 
liiuviyor  for  his  work.     •'The  jury  found,"   said  Tindai.,  C.  J.,   "that  there 
was  a  usage  in  the  trade  for  architects  or  builders  to  have  their  (juantities  made 
out  by  surv(!yors.     ♦    *     *     It  appeared  that  th(i  custom  is  benetlcial  to  the 
parties  concirned;  that  If  builders  are  not  assisted  l)y  surveyors  they  send  in 
iiiidurs  which  lead  to  loss  and  inconvenience  from  a  mistake  in  tiie  ()uaiitities." 
BusAMjii-i)  J-i  "^'liJ:  "The  jury  must  be  taken  to  have  found  that  what  has 
been  done  was  done  consistently  with  the  usage  of  the  trade.     It  has  been  con- 
ttuiltd  that  architects  are  employed  only  to  draw  plans,  and  not  to  make  out 
quantities,  but  the  tiefendants  knew  that  the  quantities  were  to  be  made  out  by 
soiiul)()dy,  and  that  if  the  work  proceeded  the  surveyor  was  to  be  paid  by  the 
suicosful  competitor;  and  the  jury  have  said  that  the  architect,  in  employing  a 
>urve>i>r,  acted  according  to  the  usage  of  the  trade."     Similarly,  in  Gray  v.  Mur- 
iv((/,5  Cliii'icellor  Kknt  allowed  a  supercargo  to  recover  for  services  performed 
by  subordinates  appointed  by  hiin  on  account  of  his  sickness,  tlie  decision  being 
expressly  placed  on  the  usage  of  the  trade  in  such  cases.     In  a  sulxsecpient 
Alabama  case,  the  court,  while  deciding,  on  the  facts  in  the  case,  that  the  delega- 
tion was  unauthorized  and  not  binding,  admitted  that  the  custom  of  the  trade 
mi!ilit,if  prove  1,  liave  changed  the  result.'    But  it  lias  been  held  in  Indiana  tliat 
a  local  custom  authorizing  a  factor,  in  his  discretion,  without  the  assent  or 
knowledge  of  his  principal,  to  ship  goods  intrusted  to  him  for  sale  in  his  own 
maikrt,  to  a  factor  of  his  own  choosing,  unknown  to  iiis  principal,  at  his  prin- 
cipal's risk,  and  in  case  of  loss  without  any  responsibility  on  himself,  is  unrea- 
sonal)!i'  and  void.' 


§  14t;.  Power  to  sell  on  Credit.  —  It  was  laid  down  by  Lord  Chief  Justice 
Hui.i'  ill  Iti£  V.  Lee.,''  decided  in  1701,  that  "  every  factor,  of  common  right,  is  to 
sell  lor  ready  money."  Mr.  \ViiA!n"o>f  stales  it  as  the  general  rule  of  law  that  a 
factor  must  sell  for  cash: "  and  Chancellor  Kkxt  has  expressed  himself  to  this 


'  Jntin-.in  V.  Cunninjihaiii,  1  Ala.  •J4!(. 

-  Hound  V.  Bailie,  2  11.  lilack.  (US;  Bar- 
iictl  f.  I.:iinbert,  1.5  Mee.  &  W.  4S!);  Qiiubee, 
etc.,  1!.  Co.  i'.  Quinn,  12  Moo.  P.  C.  O.  2(J5; 
Ilowaniv  rase.  L.  K.  1  Ch.  501 :  Totterdell  v. 
Karuhain  Brick  Co.,  L.  R.  1  C.  1*.  674;  Smith 
f.  BoiitclK!!',  1  Car.  &  Kir.  57;i ;  Trueinan  v. 
l.iMler,  U  Ati.  &  E.  .'jS'j;  LauBsall  v.  Lippm- 
I'ott,  6  Suig.  A,  U.  :M;  Gray  v.  Murray,  3 
Johns,  cii  1G7;  Bodiiie  v.  In.'<iirance  Co. ,.51 
.^'  V.  117;  r.uckland  v.  Conway,  l(i  .Mas^.  :'M: 
t)un'he^tol^  uic,  Bank  v.  New  Uuglaud  ISaiik, 


1  Cash.  177;  Williams  v.  Woods,  It;  Md.  220; 
Commercial  Bank  v.  Norton,  1  11111,501. 

a  Cole.s  V.  Trecothick,  9  Vea.  250. 

*  3  Bing.  N.  C.  814. 

5  :i  Johns.  Cli.  Ui7. 

«  Johnson  V.  Cunningham,  1  Ala.  219.  And 
see  Darliuff  v.  stun  wood,  14  Allen,  aftt. 

'  Wallace  v.  Morgan,  2:5  Ind.  ;W9. 

8  12  Modern,  .514. 

°  Whart.  on  Ag.,  J  74U;  2  Kcut'o  Comm. 
622. 


19 


I 


ifi  '!>  ft!  1  ' 

: '  M  N't 


290 


IN    1)11  KEUENT    RELATIONS    AN!)    OCGLl'ATIONS. 


rrincipal  ami  Aiiciit,. 


effect  most  uncquivoially.  It  is  perhaps  more  correct  to  ;>;.>.  wifli  SrdKv, 
that  the  ria;ht  of  a  fiictor  to  sell  upon  credit,  altho'i^h  formerly  a  fad,  to  bi 
ascertained  by  usasc,  is  now  treated  as  an  undeniable  principle  of  !,i\v,  ntnl 
incidental  to  the  aj^ency,  in  the  absence  of  all  contradictory  prooi-. '  In  (in,,,hti.,ii- 
V.  Ti/lt'r,^  a  custom  in  Boston,  where  the  sale  was  effecteil,  for  factors  to  sol!  ou 
credit  at  the  risk  of  their  principals,  unless  an  additional  premium  was  llowert 
for  taking  the  risk  upon  thi-inselves,  was  recognized;  and  one  wlio,  Ikiv  na; 
goods  consigned  to  him,  sold  on  three  months'  ci'edit,  taking  in  payiii.  ut  tlu; 
purchaser's  promissory  note  to  himself,  and  the  purchaser  aft(  rwanU  bucaiiic 
insolvent,  was  held  not  liable  for  the  value  of  the  goods.' 

§  147  Power  to  pledge  Goods.  —  That  a  factor  cannoi  plediro  tlie  uon.^  ..i 
his  prineiiMi  for  his  own  debt,  seeins  to  I)e  too  well  settled  to  admit  of  ;i  donij;. 
"T!;ough  a  factor,"  says  ChaHcellor  Kkxt,  "  may  sell  and  hind  his  |)riiiii|.;il, 
he  cannot  pledge  the  goods  as  a  security  for  his  own  debt.  The  principil  inuy 
recover  the  goods  of  tlie  pawnee,  and  his  ignorance  th.it  the  factor  held  liio 
goods  in  the  character  of  an  agent  is  no  e.Kcuse."  "  Tiie  rule,  in  the  abseni  if 
a  contrai7  statute,  seems  to  be  as  well  .settled  a  rule  as  any  in  the  hooks,  -i  j- 
ported  as  it  is  by  the  text-writers  and  by  a  host  of  aujudicalioii-^  liotli  in  •  lip 
country  and  in  Kngland.'  Hut  Judge  Stoky,  after  unqualifiedly  laying  dowi,  lie 
rule  as  before  stated,  adds  that  he  may  pledge  the  good:;  of  a  piincjpiil  foiall 
charges  and  purposes  "  which  are  allowed  or  justified  by  the  usage  of  tiail-;.''' 
And  Mr  Wharton  says :  •'  "  Yet,  even  while  professing  to  accept  this  i)riii(  iple,  - 
i.e.,  that  the  factor  cannot  pledge,  —  the  courts,  feeling  its  ineuiivenieiuc,  w  ic 
ready  to  modify  it  by  compelling  it  to  yield  to  local  usage."  Tlien  arc  ea><('s  in 
the  bocks  in  accordance  with  these  views,  but  they  "re  few.  L<  itl  Ei.don,  'ii 
Pultney  v.  Krumcr,^"  was  ap|)arently  inclined  to  tliis  moile  of  avoiding  tlic  >lr  i- 
ness  of  the  common-law  rule;  but  Pultney  v.  hcymer  has  since  tlic-n  been  1)<  tii 
criticised  and  expressly  overruled."  Had  such  a  usage;  been  shown  in  (frnlfnii. 
V.  Dj.ster,^-  decided  by  Lord  Er.LEXBOROtJcii  in  1SH>,  the  liability  of  the  fucin' 


1  Story  on  Ag.,  §  200. 

'■^  (ioodctiDW  ('.  Tylci-,  7  Mass.  30;  5  Am. 
Dec.  '22;  -Men  v.  Viindoriioul,  G  Johns,  (i'.t; 
5  Am.  Dec.  KiO;  Forrest iei-  t;.  lionbnan.  1 
Sloiy,  43;  ICniery  v.  Gurbier,  2  Wash.  C.  Ct. 
413;  James  v.  McCrede,  1  Bay,  297;  Bunill 
0.  IMiillips,  1  <iall.  3()0;  Grccly  v.  Ilartlctt,  1 
(.iveenl  172;  llougliton  ?;.  JIattlicws,  3  Bo.>-. 
it  I'ul.  IS!!;  Li'Mch  V.  Beardslee,  22  Conn. 
4(M;  IliUliCT-tf  Neil,  40  Texas,  143;  Ncill  r. 
Billiniifsley,  49  Texas,  161;  Dwight  r.  Whit- 
ney, 16  I'ick.  170. 

a  7  .Mass.  3!!;  .l  \m.  Dec.  22;  autr,  p.  18C 

*  And  sec  Chandler  r.  HokIo,  .W  III.  4'; 
Hich  V.  Miiiiroe,  14  Barb.  liflJ;  Johnston  t>, 
IJsboriie,  11  .\(1.  &  K.  .'■)49. 

6  LunssiiU  V.  I,ii))iin(.()tt,  (i  Serg.  &  U.  38(i; 
Warner  v.  Martin,  II  How.  220;  I'alterson  r. 
Tash,  2  Stra.  1178;  Macun  v.  Henderson,  1 
Kii-I,  337.  NiMvsot!  '•. 'riiornton,  II  Kasl,17; 
MeJoiubic  «.  iJavies,  ti  Kast,  53S;  Daiibiji^ny 


V.  Duval,  .5  Term  Upo.  ilU4  ;  (Jiiicli.nil  v.  '^\»r- 
gan,  4  J.  B.  Mod.  :>i;. 

"  2  Kent's  Com  in.  (V.Mi. 

■  Story  on  As..  §  113;  Whart.  on  Vr.,  S  "VJ. 
Uoyson  V.  Coles,  (>  .Man.  &  .Sel.  14 ;  itmlri- 
guez  V.  Ilelferuan,  .'»  Johns.  (Jh.  420;  lien- 
ny  r.  Uhodcs,  IS  .Mo.  147;  Kelly  v.  Smith,  i 
Blatchf.  290;  Kvans  c.  I'otter,  .  ti;ill.  1:'.;  Van 
Amringe  v.  Pciiliody,  1  .Mason,  410;  Miilii;.':in 
Stale  Bank  c.  (;ardner,  1.')  (iray,  ;I<W;  MihIsMV 
r.  Dillii'ger,  73  Ta.  St.  S.i;  Kiiidi-r  r.  »h,iw,  •; 
Mass.  30S;  Bowie  v.  Napier,  I  Mot  lod,  1. 

"  Story  on  .\t:-.  §  113. 

«  Whart.  on  Ab.,§  7.V2. 

'J  -^  Ksp.  182. 

11  See  Soll>  r.  Rathbono,  2  M:ni.  .*  >>■!  '-:'^- 
Copkran  v.  Inam,  2  Man.  it  .^ol.  :liil,  h"'''. 
Sliipley  V.  K.vni.T,  1  Man.  A  Sd.  1st;  Marlini 
)•.  (!oles,  I  Man.  &  Sel.  lie;  (Juimo/  /•.  Ti" 
man,  3  Barn.  &  <  'ress.  .)42;  Uoy-ou  v,  Coles, 
O.Mau   .tSel.  14. 

I"  2  Stark.  N.  1'.  21. 


-^ 


FKINCII'AL    AND    A(JKiNT, 


291 


Faviiiciit.  to  Asrt'iit. 


iiiL'ht,  havo  bocn  difforciit,  thoufiU  such  a  (•onclusioii  is  not  certain,  the  opinion 
belli!);  fiir  from  cU;ar  upon  tliis  point.  Tlio  case  of  Nfiohold  o.  IVntjIif,'  which  in 
18;il'>  came  before  the;  Supremo  Court  of  Pennsylvania,  is  often  cited  as  an 
instance  of  a  usajre  of  trade  cliannins  the  law  as  to  a  factor's  power  to  |iledy;e 
The  ()|)inions  in  that  case  are  very  lenu;thy,  but  the  syllabus  to  the  report  reads 
tluis:  «*A  usai?e  cannot  be  set  np  in  opposition  to  a  {general  rule  of  law;  tlie-ro- 
(ore,  a  usajj;e  for  factors  to  pledge  the  goods  of  their  principals  is  had."  And 
I'xiKUs,  J.,  wh.j  delivered  the  opinion  of  the  court,  said  of  the  custom  set  up 
at  the  trial:  ••  It  would  be  of  pernicious  conse(iuence  to  the  commercial  world 
to  recognize  such  a  custom  so  proved,  made  for  the  benefit  of  a  few,  opposed 
as  it  is  t.>  the  general  mercantile  law.  It  is  an  attempt  to  set  up  a  cuslom  in 
opposition  to  a  gencsral  principle  of  law,  which  cannot  be  permitted."  It  may 
be  oltserved,  however,  that  one  judge  dissented  from  the  rest  of  the  com;,  and 
appureu'.ly  favored  the  ailmission  of  the  custom.  But  in  Laussatt  v.  Lipjiiitrutt,- 
wlure  one  to  whom  poods  were  delivered  by  his  princii)al  to  sell,  delivei',  an  1 
receive  paynient,  di!posited  them  with  a  coimnission  merchant  coihu.  I'd  in 
business  v;',li  a  licensed  auctioniMW,  who  advanceil  his  notes  tjiereon,  ii  w.is 
held  that  this  transaction  bound  tin;  principal,  the  jury  having  found  that  this 
was  in  aei'ordanci!  with  the  usage  of  the  trade.  Tii.(;ii.MA.v,  C.  J.,  ."diiiitted  the 
^'iiieral  rule  of  law  to  be  against  the  defendant,  saying:  •' Tliat  u  factor  (;;m- 
not  pledge  Die  goods  of  his  principal  for  his  own  debt,  seems  to  be  too  well 
settled  to  admit  of  a  (ioid)t."  •'  Hut  he  added:  "Now,  tlie  jury  luive  found  'lat 
iu  tlie  ordinary  course  of  business  in  thi^,  city,  mer<-liandise-l)riiker.-  make  sale 
of  the  goods  of  the  principal  in  the  manner  in  which  this  coffee  was  sold. 
Therefore,  when  the  plaintiff  trusle-1  a  well-known  merchandise-broker  with  the 
possession  of  his  goods  for  the  purpose  of  sale,  he  impliedly  gave  him  |)ower  to 
sell  in  the  manner  in  which  he  sold;  or,  to  speak  with  more  strict  propriet., 
(though  the  jury  call  it  a  sale),  the  manner  in  which  he  deposited  for  th>  i.nrpose. 


of  xnlii 


This  case  was  cited   to  the  court  in  Nnchohl  v.  \Vri<ifit,  bw  without 


chinigiiig  the  decision  of  the  court  upon  the  main  question. 

§  14S.  Insurance  of  Goods  in  Hands  of  Agent.  —  .Vn  ag -a.,  's  bound  to  in.surc; 
the  goods  of  his  primiiial,  not  only  where  lie  has  agreed  to,*  and  wliere  the 
estal)li;;hed  rules  of  law  riMpiire  him  to  do  so,'  but  likewise  wliere  liie  general 
1  sage  of  trade  requires  it.'' 

i>  140.  Payment  to  Agent,  —  A  payment  o1  money  due  to  the  principal,  made 
to  an  agent  duly  aiitliori/.ed  to  I'cceive  it,  h  a  payment  to  the  priii<i|)al,  ;iud  will 


I  4  Itawlc,  fi.-,. 

'•  •'!  Sci^.  iV,  I!   .;,Stl. 
riiiiijr  I'aliiTsoii    --,  Titsli,  '2  Stra.   117-), 
Wiiulil  r.  Cunipl  I'll,!  I'.urr. '.'(IK;;  Pickering 
'•.  husk,  i;,  lOrtsl, .);(. 

*  siory  oil  \g.,  (j  I'.io;   Tiekel   i:  -!■  irt,  2 
Vi's.  -aW;  White  V.  Mr.ilison,  'Ji.  N.  V    ;  i ;. 


"  Story  on  Afr..  §  l!H):  Kingston  ti.  Wilson, 
4  Wash.  C.  Ct.  fi;  l)«  Kore-t  i;.  Fulton  Kire 
Ins,  C'u,,  1  Hull,  lU;  (,'rosljiif  t'.  iMeDoual, 
i:t  Ve.s,  i:5S;  Kaiidol|)li  /•,  Ware,  3  Craneli, 
,')();5;  Thorne  r.  Dens,  4  Jolins.  lul ;  (.'rawford 
/,',  Hunter,  .S  Term  Itep.  i;i;  t'reiich  v.  Hack- 
house,  5   ISurr.   2727;  Coluinbus    Ins.   (!o.  v. 


Miiith   V.   I.ascolles,  2  'I'unii    liep.   IS!);       Lawrenee,  '2  I'd.  4'.);    Lee   t',  AiJ-il,  .17  N.  Y 


li'ilhoiKl  ).,  ijonlon,  (i  I.a. 


Morris  v. 


ToiiKeu  V.  KemictI,  10  l.a.  .An.  siHI;  Col 


siimni.Tl,  '2  Wash,    V.  Ct.  '20;!;    Wallace   r,       lings  r.  Hope,  :t  Wash.  C.  (,'t,  l»t),  Walhh  r. 


'IVlfii 


ir,  2  Term  l{ep,  |S^:   i'lt'iich  r,  Keid.O       Frank,  I'J  Ark. '270. 


lliiiii..i(W;  DuTasiel  •.  1 
Ct.  132 


•  i.sillttt,  2  Wash.C. 


m 


:  %i':  } 


Hi 


1 1, 


«• 


l'i>2 


IN     DIFFKUEM'    ItlOLATIONS    AND    OCCUPATIONS. 


Principal  and  Ajjceut. 


discharge  tin;  debt.'  But  one  emni  )yed  to  sell  for  a  known  principal  has  not, 
from  tluit  fact  alone,  autliority  to  tjceive  payment,  and  the  law  does  no(  raise 
such  a  presumption  to  protect  an  innocent  payment  to  such  an  agent.-  It  hnK 
been  liekl  in  New  York  that  where  an  agent  has  not,  by  the  establislicd  inlt-i  of 
I.av,  an  ini!)lied  authority  to  receive  payment,  sucli  an  authority  cannot  be  sIkiwii 
by  a  local  usage  allowing  such  an  agent  to  receive  payment  for  his  principal.' 

On  the  other  hand,  in  respect  to  a  debt  due  in  the  ordinary  course  of  busim  ss, 
a  payment  made  to  one  found  in  the  creditor's  office,  and  apparently  iiUru>tt(l 
witn  the  conduct  of  the  business,  will  bind  the  person  to  whom  it  is  duo. 
"  If  it  did  not,"  .said  Lord  Tkntkuden,  C.  J.,  "  the  consecpiences  would  be  very 
.serious.  In  a  great  place  of  business  like  this,  [Londim]  no  transactions  could 
be  carried  on  if  it  were  not  suflic.i<'nt  for  a  purchaser  to  send  his  mom^y  to  the 
seller's  place  of  business,  and  pay  it  to  any  person  whom  he  finds  there,  wlictlii  r 
actually  autliorized  to  nu^eive  it  or  not,  who  appears  to  bo  intrusted  with  the 
conduct  of  the  business.  The  debtor  has  the  right  to  suppose  that  tlic  trades- 
man has  the  control  of  his  own  premises,  and  tliat  he  will  not  allow  persons  to 
come  there  and  intermeddle  in  his  business  without  his  autliority."*  Payment  of 
a  debt  being  only  good  in  money,  the  usage  of  attorneys  for  collection  to  receive 
in  depreciated  bills  of  a  State  bank  debts  due  their  clients  is  contrary  to  law,  and 
jnadnii>sible.^ 

§150.  Payment  —  Set-off.  —  The  factor,  unless  authorized  by  his  prineipiil, 
cannot  set  off  liis  private;  debt  to  the  vendee  against  the  vendei'V  (lel)t  on  the 
sale;  and  the  principal  will  not  be  bound  by  such  a  transaction.'-  An  ugeut 
employed  to  receive  a  debt  must  take  jiayment  only  in  money.'  Nevertlieless,  it 
has  bc'ju  ruled  in  several  cases  tiiat  where  a  broker  or  other  mercantile  amni 
has  been  employed  to  receive  money  for  another  in  the  general  course  of  liis 
business,  and  where  the  general  course  of  business  is  for  tlic  agent  to  kec|i  g. 
running  account  with  the  principal,  and  to  credit  him  with  suiik  whicli  1  may 
have  received  by  credits  in  account  with  the  debtors,  with  \^•hom  lie  also  keeps 


ml 


I  Favenc  v.  IScmnelt,  II  Ka>l.  :!S;  Uaring 
)•.  Corrie,  2  I'-arii.  &  .\M.  l:'.":  MoixlUind  v. 
I'.l(!witli,  1  Camp.  477:   (^.ates  v.  i.ewcs,  1 

<  amp.  ■(14  ;  Barrett  c.  Ucere,  Moo.  &  M.  200; 
llciiry  f  Marvin,"  K.  1).  smith,  71;  Uenard 
c.  Tiiniei,  4'2  Ala.  117;  I'apel  y.  Thornton,  ;j 
(  ar.  &  I'.  ;i,J2 ;  Tie!.,  ring  v.  Busk.,  15  Kiist,,  :iH  ; 

<  ro88  V.  Maskin-,  l;{  Vt.  m*\:  llaekiii>  r. 
.Tones,;!  llumiili.  (>1'2;  I'inckiicy  v.  Ifagadorii, 
I  Duer.  H.I. 

-  Baring  v.  Corrie,  i  Barn.  &  Aid.  l;!8;  Iro- 
Ifind  I'.  Tlionisnn,  t  (!.  B.  M'.t;  Mynii  c.  .Jol- 
lirt'c,  1  .Moo.  .t  K.  :'.Q(l;  Morris  /•.  Cleasby.  1 
Mau.  &  .Sel.57(i;  Wliiton  c.  Spring,  74  N.  V. 
169. 

'■'•  lligginH  V.  Moore,  :U  N  V.  117  (reversing 
s.  <•.  (\  Bo.s\v.  :'.I4).  Ah  1(1  eviileiiee  (if  usage 
lo  pay  ui  .igeiil,  see  llcoscli  r.  (  ai'rfngton,  ."5 
I'nr.  A  I".  171. 

I  Barren  r.  Deere,  Moo.  A  M.  'JIM);  Wilniot 
r.  Smith,  Moo.  &  M.  'J;1S;  llud.son  v.  Johnson, 
1  Wash.  10;  Branch  r.  Burnley,  1  Call,  147. 


West  r.  Ball,  12  .Ma.  :JKt. 
'  Wliart.  on  Ag.,  §  711;  We-^twood  i:  Bell, 
4  Oaiii|i.  :U!);  Turner  r.  Theuuis,  '-.  U.  V. »  .  I'. 
(ilO;  Dresser  v.  Norwood,  17  V.  V.  (N.  s.)  Wi: 
Miller  r.  I.ea,  iWi  Md.  :1W;  Lime  Korl;  Hank 
r.  Plimpton,  17  Pick.  l.V,);  Guy  c.  O.ikley,  l;i 
.(olius.  ;!;I2;  Slewarl  r.  Aherdein,  4  .Mec.  A 
\V. '.'it;  i  Kiiifs  ('ouiui.(i22;  Uuderwoofl  r 
.Nichols,  17  V.  B. '.M'J;  Sweetinp:  r.  rearrc.  T 
('.  B.  (N.  s.)  44!l;  .s'.  e.  '.I  ('.  B.  (n.  s.i  .Ml, 
Warner  v.  .Martin,  II  How.  '.Wt;  lleuny  r. 
."ogram,  IS  Mo.  1!»I  ;  Beach  r  Korsvth,  11 
Barb.  41»!»;  Bartlott  r.  I'enll.ind,  m  i:.irn.  \ 
Cress.  7tiO;  Soott  r.  Irving,  I  liarn.  \  Viliil 
till.'). 

Barker  i>.  (ireeuwood,  2  Vou.  \  <'(ill.  ll>^; 
Uoslick  r.  Hardy,  :;i)  (ia.  Siu;;  (irceinvM.iil  r. 
Burns.  W  Mo..V>;  Mangum  r.  Ball,  I:;  Mi-^^. 
a.-S;  ('aller;;ll   r.   Ilindle,  L.    R.  1  V.  I'.  1SI(; 

■,.  c.  a  ('.  p.  3fi8. 


T^ 


rRiNci  aIj  and  A(  ent. 


2\):\ 


Usuitc  as  U»  Agent's  ('ompciijsalioii. 


running  accounts,  and  not  merely  with  money  actually  received,  tlie  rule  laid 
down  in  the  foregoing  cases  cannot  properly  be  applied,  but  it  must  l)o  undei- 
stood  that  where  an  account  is  bona  fide  settled  according  to  that  known  usage, 
the  original  debtor  is  discharged  and  the  agent  becomes  the  debtor.'  In  Massa- 
cliusetts  it  Is  recognized  that  in  the  usual  and  ordinary  course  of  business  a 
factor  does  not,  and  is  not  required  to  keep  the  money  received  upon  the  sale  of 
goods  of  different  consignors  in  separate  and  distinct  parcels,  but  mingles  all  in 
a  common  mass,  and  with  the  like  funtls  of  his  own,  from  whatever  source 
derived.* 

A  custom  among  stock-brokers  to  appropriate  money  belonging  to  their  prin- 
'  ipal  to  the  payment  of  his  broker's  indebtedness  is  illegal.     In  Evans  v.  Wain, 
..  ,iln   emp.oyed   Markoe,  a   broker  in  Philadelphia,  to  sell   stock.     Evans,  a 
broker  in  New  York,  sold  the  stocK  by  order  of  Wister,  another  I'liiladelphia 
broker  under  Markoe,  with  the  assent  of  Wain,  without  naming  the  owner;  but 
before  the  proceeds  wert;  remitted  by  Kvans,  Wister  failed,  in  dcbl,  to  Kvans. 
It  wa-  h(  'I,  in  the  Supreme  Court  of  Pennsylvania,  that  Kvans  could  uot  retain 
tliedebi  from  the  proceeds,  and  that  evidence  that  it  was  the  custom  of  brokers, 
in  their  dealings  with  brokers  of  other  cities,  to  put  all  transactions  between 
them  into  one  account  and  sett!'   for  the  general  balance,  was  not  luUnissible. 
"If  tiipre  is  a  custom  among  stock-brokers,"  said  Williams,  J.,  •'  when  dealing 
("ill)  o:.>i;rs,  to  appropriate  money  belonging  to  the  principal  to  the  p-iy  incut  ol 
ii'-;  ')[■  ker's  indebtedness,   the  sooner  it  is  abolished  the  better.     Muhis  usiis 
abukndus  est.    A  custom  so  Iniquitous  can  never  obtiiin  the  force  or  saiKtion  of 
law,  and  the  marvel  is  that  it  should  be  set  up  as  a  defence  to  this  action."  ' 
So,  it  lias  been  held  that  a  usage  among  factors  to  mix  in  one  parcel  the  goods 
of  different  consignors,  and,  upon  a  sale  of  the  same,  to  charge  the  purchaser 
with  the  same,  aiul  in  some  cases  to  take  negotiable  notes  therefor  and  nego- 
tiate the  same  as  their  own  property,  and   in  case  of  the  failure  of  the  pur- 
chaser, to  charge  the  consignor  with  th(!  tie  )t  as  u  l)ad  debt,  would  not  prevent 
a  recovery  by  a  consignor  who  could  trace  his  goods,  or  the  proceeds  thereof. 
into  the  hands  of  the  factor  or  his  trustee.* 


iHimi4 


§  1.')!.  The  Affent's  Compensation.  —  There  beini;  no  express  contract  as  to 

the  airont's  cumpciisation,  usage  may  -illle  the  am  )unt,''  Miongii  it,  \va»  early 
reiiKU'ked  by  the  courts  that  in  many  cases  a  special  c.)ntract  was  l)ett,('i-,  as  not 
leaving  the  matter  open  to  doubt  and  speculation.'  A  comr.iissiuii  nii'.mant's 
charges  may  bo  xt'own  to  be  reasoualile,  and  not   usurious,  by   proof  .d    the 


'  Sti'wan  t'.  Ab^rdeiti,  4  Mee.  ft  \V.  '211; 
Uattinill  V.  Hiiiillf,  I..  U.  2(;.  1'.  ;ttiH;  Swi!»!l 
Ing  r,  i'enrpc,  i)  (J.  H.  (N.  s.)  5:U ;  Warner  v. 
Uartiii,  1)  lli>\v.  201);  scott  /;.  Irving,  1  nam. 
A  Acl'i)   m)5. 

'  Vail  r.  Oiirant,-  Allen,  40!t. 

^  71  I'a.  SI.  (i;). 

'  Soo  alM)  K.irinurs,'  t^lc,.,  Xutioiial  Hitnk 
».  SpruKiie,  .VJ  N.  V.do.'i. 

'  t'liustiiilU'M  Man.  Co.  v.  Dolion.S  Pick. 
7;  HI  \m.  l)(Mi.  ;ii;7. 

'  Kicki;  r.  Meyer,  3  Camp.  4\'1\  (;uhcn  v. 
i'.Kei,  I    (ami).  tHi;   Stewart    c.    Kohle,   ;{ 


Stark.  N.   I'.  Mfil ;  Auiiol  c.  Thomas,  2  'I'l'iin 
Kop.  .52;  U(!ii(l   r.   Kann,  10   Iturn.   A  do--. 
4;!8;  Uaynes  f.  Piy,  15  Vc-.   120;  KiilUuiaii  r. 
Hi'dwn,  )   I'iek.  47!t;  Towit  r.  Kaiii',  .">  \Vi.>, 
2(>,'>;  liarnaril  r.  Ailanis,  I'l  M<nv.  270;  Dyer 
w.  Sutheiianii,  7.')  111.  rtSO;  lienle  c.  <  n'swell 
;{  ^ill.  KHl,  .Morgan  c.  .Ma*;oii,  4  K,   I",  smith 
im.  Mivilani  f.  Wesifall,  I  lllll,  211,  llaiijr 
r.  Culliiis,  .((5  I'a.   st.  2(iS;  iMhvanl.s  .-.  (inM 
.sMiilli,    111    I'll.     St.    1,J;     liislce    v.    J((uu.-, 
Ki  iglit.  76. 

'<  K'>l)i!iis  I'.  Jackson,  2  stark.  X.  l".  735. 


I '5;  Si 


•'  i 


m'^ 


,  I 


!  >]'-.■}  I    'it  «•* 


294 


IN    DIPFERKXT    KKLATIONS    AVI)    (XJCUPA TIO.VH. 


Priiiiipal  ami  Aj^ctit.. 


custom  of  the  trade; '  and  a  usaj^e  for  the  master  of  a  vessel  to  have  the  fni^ln 
on  money  carried,  as  his  own,  and  to  be  personally  liable  on  such  coiiliacts,  is 
valid.' 

Althongh,  as  a  fijeneral  rule,  an  a^cnt  on  a  paid  salary  cannot  recover  an 
additional  compensation  for  extra  work  done  by  him,'  still,  wiien  a  custom  (■xi>ts 
to  the  contrary,  such  an  allowance  may  be  made ;  *  that  is,  if  the  party  cluiinin? 
it  can  bring  himself  within  the  custom ;  thus,  A.,  claiming  the  usual  comiiiis-^ions 
of  a  broker,  must  sliow  tliat  he  is  a  broker,  and  the  like."  But  where  tlurc  U 
an  express  agreement  between  principal  and  agent,  specifying  the  coiulitions 
upon  which  commissions  are  to  be  allowed,  it  is  not  competent  to  siiow  a  n-i-v^i-. 
allowing  commissions  when  these  conditions  are  not  complied  with;''  and  where 
the  question  was  whether  the  compensation  claimed  by  tlie  directors  of  a  corpo- 
ration was  reasonable,  evidence  of  a  custom  in  a  number  of  other  corpur.ilions 
not  to  pay  salaries  or  other  compensation  to  directors  for  services  was  rejected. 
In  R'tmcllffe  v.  Leigh,^  a  liorse-dealcr  brought  a  claim  against  the  estate  of  a  tes- 
tator for  charges  connected  with  the  purcluiseand  sale  of  horses  for  the  tcsi.itir, 
and  for  the  keep  of  horses  for  several  years.  Tlie  executrix  disiniicd  the 
amount  charged,  and  alleged  that  tlie  claimant  had  sold  several  liorses,  as  asreul 
for  the  testator,  on  commission.  Tlie  horse-dealer  replied  that  he  had  never 
sold  horses  on  commi> -ion  as  agent  for  the  testator,  but  simply  on  the  terms 
that  he  should  pay  the  testator  a  fixed  ;  urn  for  each  horse,  and  sell  it  au'niii  on 
his  own  account  for  what  he  pleased,  n  tailing  the  difference,  if  any,  a-i  his 
profit.  It  was  held  that  evideiu  e  that  this  was  the  c.istom  of  all  harse-deaiurs 
of  good  standing  was  admissible  in  support  of  his  claim. 

§  152.  The  Agent's  CompQnsation,  continued  —  The  Rules  of  Law  as  to, 
cannot  be  overturned  by  Usage.  —  There  ai;e  two  rules  of  law  eouccinini;  the 
agent's  compensation  which  are  well  estai)lished.  The  tirst  is,  that  i>roiiN  nnuie 
by  an  agent  out  of  the  principal's  property  belong  to  tlie  prliu!i|ial  and  not 
to  the  agent;*  the  second  is,  that  au  agent  of  the  owner  to  sell  property  cannot 
bt>  an  agent  for  lite  purchaser  as  well,  and  receive  pay  from  both.'" 


I  Brown  t'.  llfirrision,  17  Ala.  774. 

-  Halscy  t)   r.rown,  i  Day,  lUfi. 

1  Mai-^hall  v.  I'aisons,  i)  Car.  &  T.  656; 
Moreuu  r.  Duniiigeiic,  -JO  La.  An.  '2;10. 

<  Ibid.;  Ifailed  Stiite^  «.  McDaniel,  7  I'd. 
1 ;  United  .States  v.  Fillebi-own,  7  I'cl.  28. 

'■  Krbcii  »'.  Lorillard,  2  Keyus,  .567;  Lyon 
V.  Valentine, ;«  Itarb.  271. 

•1  Main  V.  K.lRle,  1  K.  1>.  Smith,  619. 

"  Central  Uridge  Co.  v.  City  of  Lowell,  15 
(iray,  lOU. 

'  In  re  Leigh's  Estate,  L.  U.  6Ch.  Div.2.')0. 

^  Kaet  India  V.o.  v.  Henchman,  1  Ves.  jr- 
289;  Masscy  i»,  Davis,  2  Ves.  jr.  ;fl7  ;  William- 
son t'.  Itarbonr,  ;$7  L.  'i".  (n.  s.)  (IDS:  Mcn'rison 
1).  Thtmi|ison,  L.  It.  9  Q.  B.  481;  Harbor  v. 
Dennis, (I  Modern, 69;  Anonymous,!'.^  Mod- 
ern, <15;  Itogors  V.  lioelim,  2  Ksp.  702; 
Franklin  r.  t'lrth,  3  Uro. »;.  (;.  4;i:!;  Travcrsu 
!•.  Townsend,  1  Mro.  C.  ('.  3^1;  Thomson  t', 
Ilavelock,  1   CMini).  :il'! :   Diplock  v.   Itlack- 


bnrn,:!  Camp.  43;  Tnrnbull  v.  (ia-di'M.:iS  b. 
.J.  (Cli.)  :!:il;  Kimberw.  Barbc  .  I..  I{.  S  Oh.  .W; 
J'revosl  r.  (Iiaiz,  1  I'ot.  (\Ct.  ;«;4;  ItiimiMni 
V.  Uobinson,  1   Do  ti.  M.  &  (J.  ■!:>:,  Ciiiipljell 
V.  Insurance  V.o.,  2  Whart.  (i4  ;   liartliDlomcw 
V.  Leecli,  7  Watts,  472;  .\orri.s' ApiHMl,  71  I'a. 
.St.  llHi;  Oliver  v.  I'latt,  ;!  IIdw.  :!:!!;  Wiloy's 
Appeal,  8   Watts  &  S.  241;    Ackoiilnirh'li  i'. 
Mc(;ool,  ;56   Ind.  47:5;    Lalferly  r.  .lelli'v,  Ji 
IniI.47I;  .Marvin  v.  Bnebamm,  liJ  li.irb.  It'- 
Biim     r.    Brown,    7    Lans.    .'"lOi;    Uiillnii    i 
Wdiier,  .'i2N.  Y.  ;i!3;  Leake  v.  Sulherl.inil, 'Ji 
Ark.  210;  ithea  v.  I'nryear,  in  Ark.  ;:il  ;  Wliilr 
r.  Ward,  26  Ark.  44r>;  l'.art<ni  )•.  .>!.i-e-. :'.:  III. 
.'0;  Mason  v.  liaaman  ('>2  111.  7tl;  Kly  /■.  ll:in 
ford,  (iri  III.  2(17;  Deiison  t'.  stcu.nl,   l")  l.:i. 
An.  m\\  Cliirk  r.  Anderson,  10  l!u-li,  '.d. 
'"  ICxcppi  be  be  a  middleman,  artiriR  f^r 

bolb  parties  with  tlH!kno\\  lcd)?(!  and  c «nl 

of  both.    Kverbart  c.  dearie.  71   I'a.  si.. W; 
Kiee  r.  Wood,  11:!  Mass.  1:1:1;  Lloyd  r.  Col- 


PRINCII'AL   AND    AGKNT. 


295 


Illegal  Usages. 


Both  these  rules  the  courts  have  refused  to  allow  to  be  cliangcd  by  proof 

ui  a  contrary  custom.     In  Diplock  v.  Blackhum,^  the  question  was  whetlur  the 

ilefendant  had  a  right  to  the  sum  of  £134  under  the  following  circumstances: 

Tiie  plaintiffs  were  the  executors  of  the  captain  of  .i  ship,  of  which  the  defendant 

was  the  owner,  and  it  appeared  that  when  at  the  Cape  of  Good  Hope  the  cai)tain 

had  occasion  to  draw  a  bill  upon  England,  on  account  of  the  ship,  for  the  sum  of 

£1,.500,  and  on  account  of  the  exchange  at  the  time  he  received  as  premium  the 

sum  of  £134.    The  counsel  for  the  plaintiff     ontended  that  this  money  belonged 

to  the  testator,  and  offered  to  call  witm       s  to  prove  that  it  was  usual  for  the 

captain  of  a  ship,  in  such  cases,  to  be  alldwed  for  his  own  l)enetlt  any  advantage 

.irising  from  the  state  of  the  exchange.     But  Lord  Eli.knbokouc.h  ordered  a 

nonsuit,  saying:  "I  am  clearly  of  opinion  that  this  premium  belonged  to  the 

owner,  and  not  to  tht-  ca')tain.     If  a  contrary  usage  has  prevailed,  ii  has  been  a 

usage  of  fraud  and  plunder.     What  pretence  can  tlicre  be  for  an  agent  to  make  a 

proiil  by  a  bill  upon  his  principal?    This  would  be  to  give  the  agent  an  inu-rest 

a;i,ii!>sl  his  duty.     I  believe  that  in  this  very  way  servants  of  the  public  abroad 

have  been  guilty  of  enormous  peculations.    The  testator  was  undoubtedly  bound 

to  debit  himself  for  the  £134  as  much  as  for  any  other  sum  of  money  he  received 

on  the  defendant's  account."     So,  in  a  New  York  case  it  was  held  that  a  custom 

among  insurance   agents  that  they  are  entitled   to  all  dividends  declared  by 

mutual  companies,  in  lieu  of  other  compensation,  for  effecting  the  insurance,  was 

bad.    "No  custom,"  said  the  court,  "can  be  established  which  contravenes  a 

well-settled  principle  of  law.     It  has  been  the  settled  doctrine  of  the  courts, 

l)olh  of  law  and  equity,  for  centuries,  that  an  agent  cannot  appropriate  to  his 

own  use  any  portion  of  the  protlts  arising  from  the  business  of  his  principal. 

Tlif  custom  proposed  to  be  established  overrides  this  rule  of  law,  and  authorizes 

till'  agent  not  to  appropriate  to  himself  a  part  only,  but  the  whole  of  the  prottts 

arising  from  the  business  of  his  principal.     Such  a  custom  needs  only  to  be 

sUted  to  be  repudiated.     If  tolerated,  it  would  lead  tu  the  grossest  abuses. 

Insurance-brokers  would  be  induced  to  become  membeis  of  mutual  insurance 

companies;  all  property  intrusted  to  them  would  be  insured  in  these  companies, 

not  infrequently  without  regard  to  expense,  or  even  tlu;  responsibility  of  the 

company,  so  tluat  it  should  exist  long  enough  to  enable  them  to  dispose  of  the 

dividends  which  might  be  awarded  to  tliem.     The  rights  of  all  the  parties  are 

best  .secured  by  requiring  the  broker  to  charge  such  commissions  as  lie  may  be 

fairly  entitled  to,  and  permitting  the  customer  to  take  whatever  protits  may  bo 

earned  in  the  course  of  the  business."  - 

In  the  rase  of  liaisin  v.  Clark,^  a  usage  of  real-e-date  brokers  in  the  city  of 
Baltimore  to  act  for  both  parties  in  an  exchange  of  real  estate,  and  to  charge  a 


ston,  :>  TUi^h,  nST;  Soribner  v.  Collar,  10  Mich. 
■W\  s  Cciii.  I„  J.  20.j;  Kcrfool  v.  Ilyman,52 
111.  ")lj;  ijapii  t>.  Sauip.son,  16  <iiiiy,  :v.)8; 
Wiilkoi'  r.  ()-good,  '.»s  Mass.  .T48;  Lynch  v. 
l-'iill'iii,  11  It.  I.  311;  T.azarua  v.  Hryson,  3 
Himi.  .-M;  Kx  parte  nennelt,  10  Ves.  ;W1 ; 
■•^I'livvartzt!  r,  Vcaily,  :!1  Mil.  270;  I'ugsluy  r. 
M\irr,iy,  1  K,  I).  Sinilli,'i45. 

'  :!i'anip.  i:!. 

•  Mninc-ota  (U'ntral  R.  Co.  v.  Morgan,  52 


IJarb.  217.  Son  Iho  Knglish  cases  of  tlio 
(iicat.  Western  U.  di.  v.  Cunliffc,  I-.  It.  llCh. 
.52."),  and  Haring  r.  .Stanton,  L.  ll.,'{C»i.  Itiv.mi. 
or  ilu'.-e  ca.ses  it  must  be  iibsi'rvi!<l  lliat  it 
was  till!  principal's  acquiescence,  ami  not 
tlu!  ajjcMilNruslDm,  which  prevailed  willi  the 
court.  And  SRC  IlroW"!  v.  Litton,  1  I*.  Wnis 
140;  .Jac.iiuc.i  »-.  KJjfcll,  40  Mo.  76. 
'  4i  Md.  l.'iti,  ;>c>^^  Cliap.  V. 


|:' 

1* 

m 

:     '  j 

1 

hi 

^     .  i 

5 

iff 

^■;i 

j 

■  ;  ■  !  f  J  i 

HM 

A 

■^ 


*■ 


r: 


m 


296 


IN    DIFTEUKNT    RELATIONS    AND    OCCUPATIONS. 


Principal  ami  Auciit. 


commission  to  both,  was  held  void.  A  similar  custom  amons:  the  brokers  of 
Boston  was  treated  in  the  same  way  in  Farmtwurth  v.  Ilemmt-r,^  dociiji d  by  the 
Supreme  Judicial  Court  of  Massachusetts  in  18(J1,  Bigki.ow,  C.  J.,  saying:  "Tin 
principle  on  whicli  rests  the  well-settled  doctrine  that  a  man  cannot  becoino  t  he- 
purchaser  of  property  for  his  own  use  and  benefit  which  is  intrusted  to  him  to 
sell,  Is  equally  applicable  when  the  same  person,  without  the  autliority  or  con- 
sent of  the  parties  intei'csted,  undertakes  to  act  as  the  ajjent  of  botii  vendor  and 
purchaser.  The  law  does  not  allow  a  man  to  assume  relations  so  essiiitially 
inconsistent  and  repugnant  to  each  other.  The  duty  of  an  agent  for  a  vendor  is 
to  sell  the  property  at  the  ;ii,!ihest  price ;  of  tlie  aj^ent  of  the  purchaser,  to  Imy  it 
for  the  lowest.  These  duties  are  so  utterly  irreconcilable  and  confliclihn  lh;it 
they  cannot  be  performed  by  the  same  person  without  great  dangiM-  th:;)  the 
rights  of  one  principal  will  be  sacrificed  to  promote  the  interests  of  tiie  othfr,  or 
that  neither  of  them  will  enjoy  the  benellt  of  a  discreet  and  faitiiful  exeicisi!  of 
the  trust  reposed  in  the  agent.  As  it  cannot  be  supposed  that  a  vendor  and  pur- 
chaser would  employ  tiie  same  person  to  act  as  their  agent  to  buy  and  sell  the 
saim  property,  it  is  clear  that  it  operates  as  a  surprise  on  both  parties,  and  is  a 
brt'acli  of  the  trust  and  confidence  to  be  reposed  in  the  agent  by  them  n'^pi c- 
tively,  if  his  intent  to  act  as  agent  of  both  in  tlie  same  transaction  is  comv  ,ii,i| 
from  thera.  It  is  of  the  essence  of  his  contract  that  he  will  use  his  ht-si  <l;iii 
and  judgment  to  promote  the  interest  of  liis  employer.  This  he  cannot  do  niup; 
he  acts  for  two  persons  whose  interests  are  essentially  adverse.  He  is  there- 
fore guilty  of  a  breach  of  ?\s  contract.  Nor  is  tins  all.  He  commits  a  fraud 
on  his  principals  in  undertaking,  without  their  assent  or  knowledge,  to  ad  as 
their  mutual  agent,  because  he  conceals  from  them  an  essential  fact,  eiiiir.ly 
williin  his  own  knowledge,  which  he  was  Ijound,  in  the  exercise  of  good  faiili,  to 
disclose  to  them. '^  Such  being  the  well-settled  rule  of  law,  it  follows  that  tlu' 
evidence  offered  by  the  plaintiff  was  ina<lnHssil)le.  A  custom  or  usage,  to  In 
legal  iiid  valid,  must  be  reasonable  and  consistent  with  good  morals  and  ^oinul 
policy,  so  that  parties  may  be  supposed  to  havi^  made  their  contracts  with  n  fcr- 
ence  to  it.  If  such  a  usage  is  shown  to  exist,  tlu-u  it  becon-  s  the  law  by  wliicli 
the  rights  of  the  parties  are  to  be  regulated  and  governed.  But  tlie  usage  on 
which  the  plaintiff  relied  was  wancin ■:  in  these  essential  elements.  It  woid.l  he 
unreas  mable,  because,  if  established,  it  would  operate  to  prevent  the  faiilitn! 
fnltlluu'iit  of  the  contract  of  a'.'cncy.  It  would  be  contrary  to  good  morale  aivl 
sound  policy,  becavise  it  would  tend  to  sanction  an  unwarrantable  concealiiniii 
of  facts  essential  to  a  contract,  and  operate  as  a  Iraud  on  parties  who  hail  i 
right  to  rely  on  the  confidence  reposed  in  their  agents." 

Where  A.  Iiad  agreed  to  pay  H.  "twenty  per  cent  upon  all  origiiial  or  lirs'.- 
year  premiums  collected  and  jiaid  in  by  him."  M  was  not  permillcd  to  show 
that,  by  the  usi.ge  of  the  business,  premiur.s  were  treat"d  as  "  collected  and  pai  I 
in"  although,  for  the  convenience  of  the  assured,  tliey  were  payable  in  sabsi- 
queut  instalments.-'    And  a  custom,  when  goods  are  con>igned  to  mere  hauls  for 

1  1  Allen,  494.  Kiinliall   r.  Hrawiier,  47  Mo.  3!W.     AiiJ 

a  Story  on  A^.,  |!V1 ;  Co|>«l»nd  v.  Meronn-  see  Parindtje  r.  In^urancu  Co.,  15  Wall.  ST'>; 

tile  Ins.  Co., (}  Pick.  I'.W;  I'uj^.slpy  c.  .Murr.i,. ,  Slant;  i     I  n-ucarice  C"  .  10  W.ill.  ."is'.'.    I'aiKi'. 

4   K.    I)    .Smith,  •m,    U;>pp  V.  hamynoii,  J4>  Piuduiuut,  etc.,  ln.s.  Co.,  4.i  Gu.  till. 

Uruy,  101. 


riilNClTAL    AND    AGENT. 


297 


Disresard  of  Instructions  not  Excu><ed  by  Usage. 

sale,  and  ajiain  consi'jncd  by  thcni  to  others  to  sell,  for  each  house  to  char'^e  a 
coinmiss'on  of  two  and  a  half  per  cent,  the  usual  coniniission  for  .selling  goods, 
isvoiit  MS  against  conunou  reason  and  justice.'  And  so  is  a  custom  of  factors 
tochirge  both  couiniissions  and  interest  on  advances.-  Jiut  a  well-established 
custom  among  life-insurance  companies  and  their  agents  as  to  the  kind  and 
extent  of  property  the  agents  may  possess  in  the  lists  of  policies  they  procure, 
is  admissible  to  explain  a  contract  between  them.''  And  a  usa'j;('  by  which  the 
seller  of  property  is  held  liable  to  pay  a  commission  to  a  broker  whose  services 
he  lias  accepted,  and  who  has  introduced  him  to,  and  i)rought  him  into  ncso- 
tiation  with  an  ultimate  buyer,  and  who  is  ready  to  continue  his  services  unlil  a 
sale  is  effected,  is  a  reasonable  one,  in  allowing  a  recovery  for  services  accepted 
and  ri'mlered,  even  though  the  sale  is  tlnally  effect cd  l)y  anotlier  broker.*  So,  in 
un  action  on  a  promise  to  pay  commissions  to  an  insurance  agent,  evidence  of  a 
usage  of  the  trade  to  pay  commissions  only  on  premiums  actually  collected  is 
admissible.* 

In  one  case,  whore  the  defendant,  a  ship-owner,  vvas  desirous  of  chartering 
a  vessel,  and  th(!  plaintiff,  a  ship-broker,  introduced  him  to  A.,  another  broker, 
who  introduced  him  to  H.,  who  made  known  to  C.  that  tiie  cliarter  was  wanted, 
and  through  the  negotiations  of  C.  with  the  defendant,  he  chartered  tin;  vessel, 
the  plaintiff  sued  for  commissions,  alleging  that  the  "  introducing  broker"  was 
enlitleil  by  custom  to  a  share  of  the  commissions.  The  plaintiff's  counsel  in  the 
case  proposed  to  ask  a  witness  the  question,  "What  is  the  custom  wilii  regard 
to  pavineiit  of  brokers' commissions  where  a  broker  introduces  another  broker 
to  a  ship-owner,  who  subsequently  negotiates  with  Hm  broker  introduced?" 
but  tin:  evidence  was  rejected  by  Maktin,  B.  In  the  Court  of  Exchequer  'us 
ruling  was  adirmed.  Said  Pollock,  C.  B.:  "A  custom  for  one  broker  to  l)e 
paid  lor  auotlier  broker's  work  may  be  good  where  there  is  a  direct  communi- 
cation between  the  introducing  broker  anil  the  principals;  but  if  a  ship-owner  in 
want  of  a  clmrter  applies  to  a  broker,  who  gives  the  name  of  another  broker,  and 
he  mentions  a  third  broker,  whom  the  principal  employs,  it  is  simply  prepos- 
terous that  the  broker  originally  applied  to  should  have  any  claim  on  the  princi- 
pal. A  custom  is  alleged  in  support  of  it,  but  no  usage  can  make  such  a  custom 
good."  Bkamvvkll,  Wilde,  and  Martin,  BB.,  agreed  that  even  if  such  a  custom 
could  be  established,  it  would  be  bad.'  However,  in  another  case  in  the  same 
year,  in  the  same  court,  where  the  ria:hts  of  *'  introducing  brokers  "  was  dis- 
cussed, a  custom  among  ship-brokers  that  the  Introducing  broker  should  receive 
aeoinmission  on  every  renewal  of  a  charter  originally  effected  through  him  was 
iield  admissil)le.  The  principal  question  in  this  last  case  was  whether  the  usage 
was  in  conflict  with  the  terms  of  the  contract  between  the  parties;  audof  the 
four  judges  who  sat,  only  Tollock,  C.  B.,  questioned  its  legality.' 

§153.  Usage  cannot  excuse  a  Disregard  of  Instructions.  —  A  usage  for  a 
broker  to  act  inconsistent  with  his  relations  with  his  principal,  or  to  disregard 
Ills  instructions,  is  bad.     In  Oay  v.  Jlitlmrs,'^  it  was  held  that  the  order  of  a  cus- 


'  spciir  r.  Newall,  -';!  Vt.  I.)',i,  Itiirton  v. 
Blin.il  Vt.  !r)l. 

-  siiici/.  ,:  Kennedy,  Kiley,  '218. 

'  KuHwiii'tli  i\  New  Vork,  etc.,  Ins.  Uo.,7 
Ara,  I,.  UeR.  :m. 


*  Lend  i:  Hall,  lOi!  M.ass.  4i,. 
'  Miller  i:  Insurance  »'<>.,  1  A!)I).  N.  0.470. 
«  liibson  r.  Crick,  1  Jim  I.  A  Co'l.  It.'. 
'  Allen  r.  suiidlus,  1  IIui).  (b  Cult.  123. 
» lo;}  .Mat^s.  :tO(5. 


298 


IK    DIFFERENT    RELATIONS    AND    OCCUPATIONS. 


Principal  and  Afjent. 


i 


U  i 


i?.:: 


.11 


»  ^ 


tomer  to  a  broker  to  buy  stock,  deliverable  at  auy  time,  at  biiyi'i's  optiiu, 
in  sixty  days,  would  not  authorize  the  broker  to  buy  the  stocli  liimsclf  ;ii 
thirty  days,  and  deliver  it  to  his  customer  at  the  end  of  sixty  dnys  at  an 
increased  price  and  interest,  besides  the  usual  commission,  thoujjii  a  <,'(ni'ral 
usage  among  stock-brokers  to  act  in  this  manner  was  proved.  ''TIutc  an' 
many  forcible  objections  to  its  validity,"  raid  the  court,  "but  a  conoliisjvi'  unc 
is  that  it  is  against  sound  policy  and  good  morals.  It  authorizes  tiie  t)roi<i:r,  in 
his  discretion,  to  disregard  his  instructions,  and  instead  of  acting  solely  iti  the 
interest  of  his  principal,  to  speculate  upon  the  transaction  for  his  own  tipiicflt. 
It  creates  in  the  agent  an  interest  adverse  to  hi.-<  principal,  and  is  inconsistciii 
with  his  duty  and  the  obligations  wliich  the  law  imposes  upon  him  wliin  he 
enters  into  a  contract  of  agency."  In  a  previous  case  in  the  sami;  court,  it  wan 
said  by  Fostkk,  J.:  "It  would  be  ditlicult  to  support  a  usage  by  whicih  a 
broker  employed  to  purchase  stock  might,  without  the  kuowlcdgt!  of  his  princi- 
pal, buy  the  stock  for  himself."  '  So,  in  a  Maryland  case  it  was  said:  "The 
order  is  given  to  a  stock-broker  to  purchase  certain  shares  of  a  particular, >t(Kk, 
by  parties  not  shown  to  have  actual  knowledge  of  any  peculiar  usage  or  custom 
of  his  business;  and  whilst  the  law  will  allow  custom  and  usage  to  regulal<'  it^* 
execution  in  the  reasonable  mode  we  have  indicated,  it  will  not  permit  the  de- 
fendants, by  the  force  of  any  such  custom  or  usage,  to  be  bound  by  a  niiri'l\ 
tlctitlous  purchase  —  such,  for  instance,  as  one  not  bona  Jidn  and  actually  iiiiiik', 
but  pretended  to  be  effected  by  mere  entries  upon  books  and  accounts  hitwi  in 
the  plaintiff  and  his  New  York  agents."  ^  In  Crupper  v.  Gook,''  a  usage  in  ilie 
wool  trade  that  when  a  broker  is  employed  to  buy  wool,  he  may  (lither  coutra>-t 
ill  the  name  of  the  principal,  or,  at  the  request  of  the  seller,  mav,  wittunit  tt.c 
consent  of  the  principal,  make  himself  personally  responsible,  was  held  valid 
and  reasonable  by  the  English  Court  of  Common  Pleas;  and  subsef|uently,  on 
the  authority  of  this  case,  the  same  court  ruled  that  a  broker  might  make  liim- 
si'lf  personally  responsible,  as  between  himself  and  the  seller,  if  then;  wa"  a 
usage  to  warrant  it.  But  two  of  the  judges  thought  that  although  a  usa;,'L' 
may  control  the  mode  of  performing  a  contract,  a  person  emploving  a  brokor 
would  not  be  bound  by  a  usage  to  buy  on  a  running  account  the  whole  aniount 
covered  by  orders  from  different  parties,  aud  then  to  tender  the  aininint 
covered  by  his  order,  or,  if  the  delivery  was  not  taken,  to  claim  the  diffi-r- 
ence.*  This  case  was  afterwards  taken  to  the  Court  of  Kxchequer  Cliainixr,  ami 
there  the  judges  were  again  equally  divided,  Kklly,  C.  B.,  Chvwki.i.,  li., 
and  Bl.vckiuiiix,  J.,  holding  that  the  defendant  was  bound  by  the  usage,  wliilo 
l.'i.KASBY,  B.,  and  Mkllok  and  Han'nkn,  JJ.,  were  of  the  contrary  opinion.  It 
was  then  carried  to  the  House  of  Lords,  v'lere  the  decision  of  the  lower  court 
'.vas  unanimously  reversed,  the  Lokd  Chancellor  and  Lords  Chv:lmskoiu>, 
llvTiiKKLY,  and  O'llAGANallagreeelng.  "  The  usage,"  said  Lord  CaKLMsi-oiti). 
"  is  of  such  a  peculiar  character,  and  is  so  completely  at  variance'  witii  tlu' 
relations  between  the  parties,  —  converting  a  broker  employed  to  buy  into  a  prin- 
cipal selling  for  himself,  and  thereby  giving  him  an  interest  wholly  opposed  to 
his  duty,  —  that  I  think  no  person  who  is  ignorant  of  such  a  usaire  can  be  held  t(i 
have  agreed  to  submit  to  its  condiliomi  merely  by  employing  the  services  of  a 


I'iokcring  r.  DiuuM-ritl,  100  Mass.  30(J. 
Kosonstock  v.  Turnicy,  \Vl  Md.  K!'.). 


^  l<.  U.  ;i  (,'.  1'.  I'.M. 

<  Mollett  r.  Uobiiison,  I,.  K.  5  C.  1'.  Wii. 


m\ 


nT 


njl.NCII'.M,    AM)    AdKNT. 


299 


Usanf  to  DNniian!  Irislriictioiis, 


broker,  to  whom  tlio  usnsio  is  known,  to  perforni  the  ordinary  and  accustomed 
duties  belonfiCinir  to  siicli  iMnploymont."  '  A  broiler  intrusted  witli  stock-ccrtifl- 
cates,  with  written  instructions  to  sell  under  certain  circumstances,  cannot 
tninsferthc  shares  for  a  different  purpose  to  either  himself  or  another  person, 
and  a  custom  amon^  brokers  to  do  so  is  irrelevant.'-  Where  an  aj^ent  received 
of  his  principal  the  sum  of  $275  "  to  buy  flour,"  and  tiie  latter,  receiving  no 
flour,  demanded  his  money,  when  the  ajjent  produced  a  receipt  for  $;?00  from 
another  person  "towards  100  l)arrels  of  flour,  at  $4  a  barrel,"  wlilch  lie  wished 
10  exchange  for  his  own  receipt,  but  the  principal  refused,  it  was  lield  that  the 
latter  was  entitled  to  recover  the  monoy;  and  that  evidence  that  it  was  the  cus- 
tom amonij  merchants  <;;oinK  or  sending  to  purchase  jjoods  to  pay  for  the 
article  purchased  witliout  taking  a  delivery  or  seeing  it,  this  being  considered 
a  purchase,  was  inadmissil)le.' 

No  usage  will  warrant  a  factor  in  departing  from  the  positive  instructions  of 
Ills  piinci|)al.  In  an  action  against  the  defendants  to  recover  the  proceeds  of 
certain  rice  consigned  to  them  as  factors,  for  sale,  it  appeared  that  the  plaintiff's 
instructions  to  the  defendants  were  to  sell  for  cash,  but  that  tliey  sold  and  deliv- 
erod  the  rice  to  another  party  without  his  paying  for  it,  and  that  he  aftc^rwards 
al)seonded.  The  defendants  set  up  a  usage  which  had  existed  among  factors  in 
the  place  of  the  sale  for  forty  years,  where  tiiey  sold  for  cash,  to  give  indulgence 
of  a  week  or  a  fortnight  before  calling  for  the  monoy.  Curves,  J.,  thought  the 
nsauce  reasonable,  and  essential  to  the  transaction  of  business  in  that  coniujunity ; 
but  all  the  other  judges  of  tlie  Supreme  Court  of  South  Carolina  were  of 
opinion  that  it  could  not  on  any  account  excuse  the  departure  from  the  instruc- 
tions given.  "That  usage,"  said  Nott,  J.,  who  spoke  for  five  members  of  the 
court,  "does  in  many  instances  constitute  the  law,  and  that  contracts  must  be 
construed  with  reference  to  the  usages  of  the  trade  or  business  to  which  they 
relate,  are  principles  too  well  established  to  be  questioned  now.  Numerous  ex- 
amples are  to  be  found  among  the  cases  arising  on  policies  of  insurance;  and 
perhaps  no  stronger  case  can  be  found  than  that  of  three  days'  grace  allowed  in 
cases  of  bills  of  exchange.  But,  to  entitle  a  usage  to  that  high  respect  it  must 
be  a  reasonable  one.  It  must  be  for  the  beneflt  of  trade  generally,  and  not  for 
the  convenience  and  beneflt  of  a  particular  class  of  individuals.  And  [  can  con- 
ceive of  no  usage  that  will  authorize  a  departure  from  positive  instructions. 
The  instructions  of  a  principal  to  his  agent  make  the  law  by  which  he  is  to  be 
sovorned,  and  to  authorize  him  to  depart  from  them  would  be  depriving  the 
patties  of  tlie  privilege  of  making  their  own  terms."  *  Where  factors  in  Mil- 
waukee received  a  consignment  of  wheat,  with  instructions  to  sell  for  cash,  and 
they  made  a  sale  of  the  wheat,  taking  the  pllrcha^e^'s  check  for  the  amount,  pay 
able  the  next  day.  tind  on  the  next  day  he  failed  and  the  check  was  disiiouored 
they  were  held  liable  to  their  principal;  and  not  the  less  that,  by  the  usual  course 
of  business  in  Milwaukee,  factors  collected  cash  sales  on  the  day  after  delivery. 
So,  where  a  commission  merchant  to  whom  cheese  was  consigned  was  direct<(l 


'  U.iliiiison  V.  Molletl,  L.  II.  r>  C.  V.  (MB; 
I-  It.  7  i;.  1'.  81;  L.  It.  7  II.  h.  C'as.  8(1->.  And 
si'c  liostock  V.  .lai-dliip,  A  Hurl.  &  Colt.  700; 
Ji'liiisdii  r.  Ker.sliiiw,  I,.  H.  "2  Kxch.  S'i; 
Inland  r.  Livingston,  L.  H,  5  Q.   I!.,  510;  U 

1!.  2  g.  n.  yi);  l.  k.  a  h.  t-.  cas.  ;{95. 


-  I'arson.s  v.  Miirliii,  II  (iray,  112. 

-  StroiiK  r.  r.liss.t;  .Mete. :!!»:'.. 

^  liaiksdali'  r.  livawn,  I  NoU  &  M.  517 ;  9 
Am.  Dee.  7-'ii. 

'  Hall  r.  Ston-8,  7  Wis.  '2!)•^. 


300 


IN    DIFFKKBNT    KKLATIONS    AND    OCCljl'ATION.S. 


Principal  and  Ascnt. 


to  .sell  it  for  casli,  and  delivorod  it  without  n.-coivinir  tlic  money,  he  \v,i>  imi 
protected  by  a  custom  existing  among  commission  mercli.ints  to  deliver  Midi 
articles  and  wait  for  the  pay  a  wei'k  or  ten  days.'  So,  where  a  person  to  whom 
goods  were  consigned  to  sell  on  commission,  *'  for  easli,  or  not  on  credit,"  s.ilii 
them  to  one  who  agreed  to  jiay  for  them  in  a  few  days,  but  failed  to  do  so,  ii 
was  held  that  the  factor  could  not  show  in  defence  a  eu<iom  by  which  such  sah' 
was  considered  a  cash  salc.^  Again:  in  a  New  York  case  of  a  similar  cliaracter, 
an  offer  on  the  part  of  the  defendant  to  prove  that  the  uniform  course  of  tlic 
market  in  New  York,  where  the  cattle  in  question  in  that  case  were  sold,  "  in 
making  sales  for  cash,"  was  to  deliver  the  cattle  to  the  purchaser,  who  shuiLili- 
ters  and  w(!ighs  them,  and  after  the  weight  is  ascertained  pays  for  them,  which 
occupation  usually  occupies  two  or  three  weeks  in  the  sale  of  a  drove  of  cattle, 
was  rejected  by  the  court,^  Clark  v.  Van  N'lrthvu'r/c,*  decided  by  the  Supreme 
Court  of  Massachusetts  in  1823,  conflicts  witli  the  rule  in  the  cases  just  cit<d. 
The  plaintiff  sent  several  boxes  of  lemons  antl  oranges  from  Boston  to  the 
defendants  at  New  York,  with  directions  to  sell  them  for  cash.  A  week  latci- 
the  defendants  sold  Ihem  to  a  person  in  good  credit,  sending  in  their  bill  the 
next  day  for  payment.  In  the  meantime,  however,  tiie  purchaser  had  bccoiiK 
insane,  and  only  a  portion  of  the  money  was  paid.  On  tlu'  trial  of  an  action  lor 
the  balance,  the  question  arose  whether  this  was  a  sale  "  for  cash,"  anil  tin 
defendants  introduced  evidence  to  show  that  both  at  Boston  and  New  York, 
when  orders  were  received  to  sell  goods  for  cash,  although  tlu-  seller  has  the 
riglit  to  demand  the  cash  on  delivery  of  the  goods,  it  is  neverllu  '  ss  usual,  ii 
the  purchaser  is  in  good  credit,  to  deliver  the  goods,  and  send  in  the  bill  fo; 
payment  the  next  day,  or  within  two  or  three  days;  and  that  such,  in  the  under- 
standing of  merchants,  would  be  a  sale  *'  for  cash."  The  jury  were  instructed 
that  if  this  custom  was  proved  It  would  relieve  the  defendants,  and  they  returned 
a  verdict  in  their  favor.  In  the  higher  court  the  ruling  »vas  affirmed.  "Upon 
the  evidence  of  the  usage,"  it  was  said,  "  which  was  properiy  admitted,  the 
jury  have  found  that  this  was  a  cash  sale,  and  it  would  embarrass  business  vcn 
much  if  it  were  not  so  considered.  The  defendants  did  not  intend  to  allow  the 
purchaser  a  credit  for  any  length  of  time.  Tliey  might  have  sued  him  inuiK- 
diately  after  the  delivery  of  the  fruit.  Such  a  sale  is  no  violation  of  orders  to 
sell  for  cash,  unless  it  is  made  to  a  person  in  insolvent  circumstances,  which  is 
not  the  case  here." 

Where  goods  are  left  with  the  clerk  of  a  forwarder,  with  special  directions  ;is 
to  the  mode  of  transportation  and  delivery,  it  is  the  duty  of  the  forwarder  to 
forward  the  goods  together  with  the  directions;  and  a  custom  of  the  piucr 
wliere  the  business  is  transacted  that  forwarders'  clerks  will  not  forward  speci;:i 
directions,  if  not  known  to  tlie  owner,  will  )iot  bind  him.^ 

§  154.  Liability  of  Principal  and  Agent  on  Contracts.  —  As  a  general  rule,  an 
agent  is  not  personally  bound  by  a  contract  made  by  him  for  his  prir.cijial.  An 
agent,  as  such,  and  contracting  as  agent  and  not  as  principal,  incurs  no  jii  r- 


1  Bliss  V.  ArnoltJ.aVt.  252. 
«  Catlin  V.  Smith,  24  Vt.  8."). 
"  Lulaiid  u.  Uouglass,  1  Wend.  4'JO.    And 


scu  .Stewart  v.  Soiiddcr,  2  Am.  L.  Keg.  (o.  s.) 
80  (New  Jersey). 

■*  1  I'ick.  :!4:!. 

6  lluieliiiis  r.  r.add.  Hi  Mich.  40,3. 


PIMNCITAL    AM)    A(JKNT. 


301 


Llahilitv  on  Contracts. 


■ioiial  responsibility  upon  I  lie  loiiinict  ifsi^lf.'  This  principle  runs  through  all 
the  cases,  the  apparent  coiidict  In'inji  where,  upon  the  facts  of  different  cases,  It 
ii;is  been  deciiled  in  different  ways,  that  tiie  ;ig  nt  has  or  has  not  snlllciently 
ilcscrilied  liinHclf  to  the  otlier  contracting  party  as  acting  in  tlie  capacity  of  an 
;i^ent.'  Tlie  law  in  Kngland  seems  to  lie  establislied  that  an  agent  signing  a 
(■(iiilract  as  agent,  or  showing  his  iigency  in  some  manner,  is  not  personally 
li;ible,  even  though  his  prineiiJal's  name  be  not  disclosi^d.'  On  the  other  hand, 
Jiulge  SroKY  states  the  American  rule  to  be  that  agents  will  be  personally  bound 
(III  contracts  made  by  them,  "where  they  are  known  to  be  agents  and  acting 
ill  that  character,  but  the  name  of  their  prineii)al  is  not  disclosed;  for,  until  such 
(li>closure,  it  is  impossible  to  suppose  that  the  other  contracting  party  is  willing 
,1)  (liter  iiit>  a  eoniract  exonerating  the  agent  and  trusting  to  an  unknown  prin- 
lilial,  who  may  be  insolvent  or  incapable  of  binding  himself."  ♦  But  the  Knglish 
courS  have  been  lilieral  in  allowing  evidence  of  usage  to  show  a  different 
iiiukrslanding  in  different  trades.  In  several  well-considered  cases,  an  agent 
\vhi>  has  entered  into  a  writleii  contract  lor  an  iindix'losed  princii)al  has  been 
iiiiir  1'  rsonally  liaMe,  iiixm  proof  of  a  custom  reeogiiiziiig  such  a  liability. 

In  tiic  leading  cti^e  of  Ilnmfrcii  v.  Dalc,^  the  defendants,  London  brokers, 
Iniiiu:  employed  to  buy  oil  for  their  iirinci|Kil,  gave  the  vendor  a  note  as  follows: 
".Sold  this  day  for  Messrs.  Thomas  &  Moore  to  our  principals,  ten  tons  of 
linseed  oil.  Dale,  Morgan  &  Co.,  brokers."  The  deteiidants  did  not  disclose 
the  name  of  their  principal  at  the  time,  and  evidenci?  w;is  admitted  at  the  trial 
tli;it,  according  to  the  usages  of  the  trade,  whenever  a  broker  purchased  with- 
out dix'losing  the  name  of  his  principal  he  wa>i  iicrsonally  liable  on  the  con- 
tract.   This  ruling  was  allinned  on  appeal.     This  case  was  decided  in  IH.")". 

F/('c(  V.  J/'O-iora"  was  decided  in  ISTl.  The  defendants  were  fruit-brokers  In 
London,  and  were  employed  by  the  ])laiiitiffs,  who  were  merchants  in  London,  to 
sell  for  th(!in.  They  gave  to  the  plaintiffs  the  following  note:  "We  have  this 
il;iy  sold  for  your  acicount  to  our  principal  "  certain  tons  of  raisins.  "  Signed, 
Miirton  &  Wel)b,  l)rokers."  The  defendants'  principal  having  refused  to  accept 
a  part  of  the  raisins,  the  plaintiffs  brought  an  action  against  the  defendants,  and 
;;!ve  evidence  that,  in  the  London  fruil-trade,  if  the  brokers  did  not  give  the 
names  of  their  principals  in  their  contracts  they  were  held  personally  liable, 
aliliough  in  fact  they  contracted  as  brok(,Ts  for  a  principal.  On  the  strength  of 
this  evidence  the  plaintiffs  had  a  verdict.  In  the  (Jourt  of  Queen's  Bench  the 
custom  was  recognized,  CocicnfRN',  C.  J.,  .saying:  "Although  where  a  party 
contracts  as  agent  there  would  not,  independently  of  some  further  biirgain,  be 
any  liability  on  him  as  principal,  yet  if  a  man,  though  professing  on  the  face  of 
the  contract  to  contract  as  agent  for  another,  and  to  bind  iiis  principal  only,  and 
not  himself,  chooses  to  qualify  that  contract  by  saying  tiiat  he  will  makt'  himself 
liable,  though  he  Is  contracting  f(n"  another  and  giving  to  anotlier  rights  under 
the  contract,  he  himself  will  incur  the  same  liability  as  his  principal.     Now, 


'  2  Kent's  Oomm.  <1J'.':  !'.v.in>  on  Af?.  :!08. 

-  (iri:i:ii  r.  KopUi',  IS  ( :.  I',.  ."',  i;  MMlii(n(,'y 
r  lu'kiilie,  14  C.  15.  :«K);  IScid  r.  l)raii(!V,  (! 
Iluil.  A  \.  SI:!;  I'airlee  r.  Kenton,  1..  1!.  5 
K\(li,  lii.i;  I'aicc  ,-.  Wallvcr,  I,.  It.  .'".  Kxcti. 
ITS;  .Sharmaii  v.  Uraiidi.  L.  K.  G  Q.  U.  TM; 


Soiuliuull  V.  I5.>\v(licli,  L.  n.  1  C.  P.  Div.  100; 
(Jiiiid  r.  IIoiiLjIiton,  L.  U.  1  Kxch.  Div.  MT. 
■  Kvaii.<  OH  .V^.  im,  and  casus  ante. 

*  Story    on  Ay:.,   §  •Hi!    (citing   Winsor  v, 
«irij;,;;s,,-,  Cush.  210). 

•  7  !•;!.  A  I51.2titi,  pout,  Cliai).  IV. 
0  L.  U.  7Q.  B.  126,'a>U(J.  p.  90. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


*--.V^. 


1.0 


1.1 


^■M    |2.5 

ISO     "^™        ■■■ 
St 


22 


I 


:^   us,    12.0 


ii'-25.ir-^ii'-^ 

^ 

6"     

► 

V] 


71 


/. 


>> 


'/ 


't^ 


I%3tographic 

Sciences 

Corporation 


23  WEST  MAIN  STRIET 

wnsTH.N.Y.  Msro 

(716)  •73-4503 


^y/^ 

M^.. 


^ 


a()2 


IN    OIFrKKKNT    KBLATIUNS    ANO    OCCLPATH  ».NS. 


Principal  and  A^ont. 


il'- 


ml 


althou^rh  where  a  party  prof('ss(!s  to  contract  as  broker  it  niiiilit  prima  fm-.,  n, 
taken  that  he  contracts  without  the  intention  of  incuninu;  lial)llify  on  liisown 
part,  yet  if  by  the  custom  of  iiw  particular  trade  there  is  that  <|narMic,uii)n  oi 
the  contract  which,  if  written  into  tiie  contract,  would  undoubtedly  i)iiiii  hitn. 
the  qualification  may,  I  think,  bo  imported  into  the  contract  by  evidei\ee  of  tin 
custom.    *     *     *     T\w  def(;ndants  here  undoubtedly  call   themselves  l)n>ki  r-. 
acting  for  their  principal.     But  if  the  custom  attaches,  the  nou-lial)ility  w\\'.r\. 
would  under  ordinary  circumstances  prima  facie  exist  in  a  coutniet  niaile  hy  ■> 
person  purporting  to  contract  as  broker  ceases,  and  the  contract  assumes  a  <iil- 
ferent  form  and  character,  and  carries  with  it  different  legal  consecitieiiccx,  iiv 
reason  of  the  custom  of  the  trade."     Bi.ArKiiritN,  J.,  was  of  the  same  o|iiiii,.ii 
••  1  agree,"  said  hi,  "that  in  the  present  cas(!,  if  it  were  not  for  the  evidence  oi 
CKsiom,  the  def(!ndants,  who  contract  for  a  principal  —  '  sold  to  our  principal '  — 
and  sign  as  broke  ■.  would  not  have  been  liable  at  all  upon  this  coiitnict.    IJn 
then  there  came    '.    custom,  and  the  evidence  of  custom  was  to  this  effect:  iha 
in  this  trade  the  broker-  neal  on  these  terms.     The  Ciistom  is,  that  if  tlie  bmk' 
do<  s  not  disclose  his       'v  ipal's  name  he  is  personally  liable." 

lltitrhiasoii  v.  Tat!  ','  a  still  stronger  case,  was  decided  in  1873.  The  de 
fendants,  acMng  as  ;.  -,\*  Uyr  on';  L.,  with  his  authority  chartered  a  ship  for  tin 
conveyance  of  a  cargo  of  eurrants  from  the  Ionian  Islands.  Tiie  charter-par;' 
was  signed  by  the  defendants  as  "agents  to  merchants,"  the  name  of  Mu"  prin.  i- 
pal  not  being  disclosed.  .At  the  trial  the  plaintiff  offered  evidence,  wiiicli  .v.;- 
admitted,  of  a  trade  usage  that  if  the  principal's  name  is  not  disclosed  witli.n  i 
reasonable  time  after  the  signing  of  the  charter-party  the  broker  shall  he  ( >  r- 
sonally  liable.  In  the  Common  Pleas  it  was  held  that  the  evidence  \va<  ri'.'litly 
admitted,  ndying  upon  Humfrcy  v.  Dale  and  F/cet  v.  Mnrtim  as  auilnrlty  tur 
their  decision.  A  usage  of  trade  may  render  agents  an<l  factors  aeiinir  for  per- 
sons resident  in  a  foreign  country  personally  liable  on  contracts  made  for  tin  ii 
employiirs,  although  they  fully  disclose  the  character  in  which  thc^y  act." 

But  a  person  contracting  as  agent  will  be  personally  liable  wln-re  lie  maKe- 
the  contract  in  his  own  name.-'  In  such  cases,  evidence  of  usage  to  exonerate 
an  agent  from  personal  liability  has  been  held  Inadmissible.  In  Majors,  ai- 
kinson,*  decided  in  1837,  A.,  a  broker  employed  by  B.  to  sell  certain  rail\va\ 
shares,  agreed  with  C,  D.'s  broker,  to  .sell  him  fifty  shares,  of  which  A.  afti  r 
warils  informed  his  clerk  at  his  office,  who  made  an  entry  in  his  book  as  of  a  siile 
from  A.  to  C,  and  a  contract  note  to  that  effect  was  sent  to  ('.  A.  subsequent  Iv 
saw  the  entry  in  the  book,  and  attested  it  by  writing  in  the  ininie  of  B.  as  s. Her. 
Another  note  was  accordingly  sent  the  same  evening  or  the  next  moriiinu  o 
(;.,  but  C.  received  them  both  together;  he  did  not  return  the  llrst  note,  nor  dm 
A.  re(|Uest  it.  In  an  action  by  D.  against  A.  for  breach  of  the  agreement  in  nei 
completing  the  sale,  Pattkson,  J.,  left  it  to  the  jury  to  say  whether  the  secoml 
note  was  a  correction  of  a  mistake  in  the  llrst,  and  told  the  jury  that  if  tti' 
defendant  entered  into  a  written  contract  in  his  own  name  he  could  not  afi' ' 
wards  .set  up  that  he  was  acting  merely  as  a  l)roker,  and  that,  altltough  known 
to  be  a  broker,  if  he  signed  the  contract  in  his  own  luune  he  was  liable.     HeuN" 


I  L.  R.  H  C.  P.  482. 
•■'  McKtMizie  c.  Neviiis,  S  Mass.  434. 
<  Jones  i:  l.ittli'ilalc,  t\  Ad.  .t  E.  4H6;  Hop- 
kiDB  «.  Mehaffy,  11  Surg.  AH.  129;  Kirkpat- 


rick  r.  Stalncr,   22    Wend.    241;   unil  canfs 
cited  nt  Siory  on  Ag.,  jj  •.•»«>. 
4  9  Me«.  A  W.  440. 


'^ 


PKINCIIAL    AND    AGENT. 


303 


Vfiidor  uml  Piircliuser. 


rejt<;tcd  evidence  tliJit  it  \va>  tlii-  custom  in  Liverpool  to  send  in  brolver>' 
iiotts  witiiout  discloslii'j  tlit-  principal's  iiaiiie.  Tlio  plaintiff  huvini;  rocoveroti 
a  vtitlict,  the  direction  and  nilin^  of  tlic  trial  juduc  \vt;rc'  allirrned  by  the  court 
inhmic.  •'The  custom  offered  to  be  proved,"  said  Ai.ukuson,  B.,  "is  acustonj 
Ut  violate  the  common  law  of  ICnjiland." 

In  Trucman  v.  Loder,^  decided  in  1840,  L.,  a  merchant  residinij;  at  St.  I'cler-- 
bui;:, 'JJirricd  on  business  through  II.  II.,  having  ceased  to  represent  L.,  con- 
iracted  with  T.  to  .sell  him  tallow,  intendini;  to  make  ..•ontract  for  himself,  bui 
T.  tiioiiiilM  liini  an  agent  for  L.,  a.s  before.  The  coi  ract  was  n>a(l(!  by  W.,  .1 
hroker,  acting  for  both.  He  signed  bought-and-sohl  notes,  the  former  begin- 
ning, "  Bought  for  T.,"  and  the  latter,  "  Sold  for  II.  to  my  principals."  It  wa'^ 
iiclil  that  L.  was  liai)le  for  the  non-delivery  of  the  tallow,  and  that  evidence  of  a 
lustoui  in  the  tallow  trade  that  "a  party  might  reject  the  undisclosed  principal 
anil  look  to  tin;  broker  for  the  completion  of  tlie  contract,  was  inadmissible." 


§  I.'i5.  Attorney  and  Client.  —  A  custom  for  attorneys  to  charge  a  client 
witli  a  term-fee  at  each  term,  e.vcejjting  at  tin;  term  at  which  the  ease  is  argued, 
wluii  an  arguing-fee  is  taxed  instead,  and  in  addition  thensto,  when  the  defend- 
;inl  prevails,  to  eharge  the  client  with  the  taxable  costs,  exclusive  of  witnesses' 
(et-s  and  money  advanced  by  the  client,  is  reasonable  and  valid.  So,  retainer> 
are  chargeable  by  custom,  witiiout  a  spe(;ial  contract;  '  and  attorneys  may,  b; 
custom,  become  responsible  for  a  sheriff's  fees  in  the  stead  of  the  client.* 


IX.    VkXDOK    AM>    I'lliCIIASKH. 

^  I.jG.  Usages  ol  Trade  affecting  Sales.  —  As  a  general  thing,  where  nothing 
i>  said  as  to  the  lerni>  of  sale,  it  is  presumed  to  be  made  in  compliance  with  the 
Usage  of  the  particular  trade  or  of  the  parties.  Evidence  of  usage  in  a  particu- 
lar trade  isailmi><sible  for  the  purpo.se  of  allowing  the  modes  of  effecting  sales  — 
as,  for  example,  the  Usage  of  the  cloth  trade  relative  to  the  return  of  cloth  .sent 
for  inspection;  ••  or  that,  according  to  the  known  usages  of  the  cotton  trade, 
lottDP  is  always  .sold  by  samph;; '■  that  upon  the  ,sal<'  of  berries  in  bags  by 
sanijilc,  the  custom  of  tht^  trade  is  that  the  sample  represents  the  average  quality 
of  tin;  entire  lot,  and  not  the  average  quality  of  the  amount  contained  in  each  bag, 
taken  separately: '  that  it  is  the  custom  among  flour-merchants  that  the  vendee 
may  revcind  i|„'  sale  and  return  the  flour  within  ten  days,  if  It  jirove  to  bt 
ni'.Miiiiui  and  damaged.'*  An  offer  sent  by  mail,  i)y  one  who  understands  that 
iieciprding  to  the  usage  of  business  a  reply  may  be  sent  by  mail,  carries  with 
it  an  autlutrity  to  communicate  acceptance  by  mail.'  A  usage  in  the  liquor 
trade,  upon  the  sale  of  li(|Uor  in  l)arrels,  to  measure  but  one  barrel  in  ten,  and 
tli'M  make  an  estimate  of   the  whole  based  on  this  measurement,  has  been 


'  II  All.  ft  K.  :m. 

'  II'mIIMj  v.  Kox,  i?  Mo.  «0;  Codmnn  r. 
AniiMron;;,  OH  Me.  '.(I. 

'  Kpfrloiiin  f.  noanlman,  :•.:  Miili.  14. 

^  biiiiphiy  ,..  Vngc,  IS  tiiwa,  4s:t. 

"  WdiMl  r.  Wood,  1  Car.  ft  I',  .-^n;  aii/«,  p. 
S.  And  Kcc  Leigh  I'.  Mobile,  cte.,  K.  Co.,  68 
Ala,  166. 


«  Boorman  v.  Johnston,  12  Weiul.  .'MHi: 
WilliriKs  r.  Consociiia,  1  I'el .  C.  Ct  •.".•,').  And 
see  A I  water  v.  Clancy,  107  Mass,  3(i!t. 

■  Sehnitzcr  r.  Oiienlal  I'rlnt-Works,  111 
Mass.  I'JIJ;  l.uonnni  <>.  KowUt,  44  N,  Y,  880. 

1^  Kniidnll  r.  Kchlor,  tiO  Me.  37. 

»  Wnll  .-  Vnnis,  L.  R.  16  E^.  18. 


304 


l\     DIl'FEUKNT    UKLAT10N8    AND    0(X;U1'A  riOiNS. 


Vfiidor  and  I'lirclmscr. 


I      \> 


.'; 


adjiuliied  reasoniiblo  and  valid.  An  action  was  hronglit  in  a  Nt;\v  York  courl  o 
recover  tlie  value  of  one  hundred  and  forty  jj;allon.-  of  liquor,  i)eini;  ii  (Icficiincv 
in  quantity  on  a  sale  of  liquor  in  barrels  by  the  defendant  to  the  i)laiuliff.  1 1|,. 
di'llciency  had  l)ecn  ascertained  by  measuring  one  in  tin  of  the  barrels,  ,i-  i.ni- 
illy;  to  the  custom  of  the  trade,  which  was  proved  on  tlie  trial.  The  courl  lulil 
tliat,  this  beinn  the  custom,  an  actual  measurement  of  eacli  barrel  need  n.)i  1)|. 
shown  before  a  recovery  could  be  had,  and  the  plaintiff  hud  a  verdict.  ( »ii 
appeal,  the  reasonableness  of  the  usaire  was  aflirmed.  *»  It  did  not,"  said 
HitADY,  J.,  "  contravene  any  established  rule  of  law,  on  any  fjiveii  stale  of  tucs, 
l)Ut  related  simply  to  the  mode  of  asccrtaiuin*?  a  fact  upon  vvlii(;li  a  nilr  of 
l:iw  mijrht  be  declared.  The  contract  between  the  parties,  enhir^cii  or  fully 
expressed  by  reference  to  the  custom  mentioned,  would  be:  'I  sell  you  a  uiiiu- 
ber  of  barrels  of  licpior,  which  I  say  contain  a  certain  number  of  gallons,  staled 
on  this  bill,  but  the  e.vact  (piantity  may  be  ascertained  by  measuring;  ten  (uit  i>f 
every  one  hundred  of  the  barrels,  or  iu  like  proportion  for  any  nuuibcr,  ami 
Miakins^  a  jieneral  estimate  founded  upon  such  measurenient.'  This  nuiilc  of 
ascertainiiiij;  the  quantity  is  reasonable  and  convenient.  It  is  equally  open 
to  both  parties,  and  nuist  result  often  in  a  saving  of  labor,  time,  and  expense. 
It  does  not  contravene  any  policy  or  principle  of  the  law,  and  is,  in  faci,  an 
agreement  that  as  to  quantity  both  seller  and  buyer  may,  by  a  system  of  aveiau'o, 
determine  the  number  of  galions  contained  in  a  number  of  barrels,  \\itli>>ut 
;;auging  or  measuring  each  oni;.  As  a  commercial  usage  it  seems  to  be  one  of 
great  utriLy,  as,  so  far  as  the  eviilence  given  in  this  case  illustrato  its  nperatiii, 
it  subser  xs  the  ends  of  justice,  inasmuch  as  no  testimony  was  otfi  nd  Ijv  iln 
defendant  to  controvert  the  result  of  the  examination  by  the  plaintiff's  wit- 
nesses." '  And  where  the  plaintiff  sent  a  quantity  of  cider  to  the  defendant  to 
be  sold  by  him,  and  after  the  cider  was  so  dispo.sed  of  the  defendant  retiinicd 
other  barrels,  ecpial  in  numl)cr  and  value  to  the  original  ones,  hut  the  plaintiff 
tlemanded  and  brought  trover  for  the  original  barrels,  it  was  held  that  tlic 
defendant  was  protected  by  giving  in  evidence  a  custom  ot  the  trade  to  let  the 
casks  go  to  the  purchaser  with  their  contents,  and  return  otiiers  of  equal  value. 
And  in  the  sale  of  tobacco,  usage  may  .^how  that  the  weight  is  computed  as 
previously  ascertained  at  the  time  of  packing  and  marked  on  the  cases,  and 
not  by  the  actual  weight  at  the  time  of  the  sale.'^  So  of  a  custom  to  sell  lum- 
ber without  measuring  it.* 

In  Blivcn  v.  New  Emjland  Screw  Company,^  the  action  was  for  the  broach  of 
several  contracts  for  the  delivery  of  screws,  of  which  the  defendants  W(  iv  the 
manufacturers.  The  contracts  were  admitted,  but  to  excuse  their  noii-jH  riorm- 
ance  the  defendants  proved  that  they  were  the  sole  manufacturers  in  the  I'nited 
States,  and  were  constantly  receiving  orders  from  their  customers  faster  than 


>  Dalton  V.  Uanlclfl,  2Hilt.  472. 

5  .Slurgis  V.  Ruckley,  :J2  (^mn.  18.  "The 
idainlifT  elaimeil  that  tliu  eustoiii  wii.s  nul 
I'uasoiiable.  Tlie  e.omt  held  that  it  was  no 
ill  the  former  case.  It  would  bn  most  un- 
reasonable to  insist  that  cider  sent  to  mar- 
ket should  be  drawn  off  into  ditftM-ent  casks 
wheaever  transferred  from  one  person  to 


another,  and  tlint  the  precise  barrels  tttioulil 
be  suni,  ba<'.k  to  llie  origmHl  owner.  Almut 
as  well  iiiiKlit  I  Ills  change  lie  required  in  tliu 
case  of  floui-,  or  pork,  or  fish."  McCiirdjr, 
J.,  in  Slursis  r.  Rnekley,  ;12  I'onn.  2fi6. 
»  Jones  c.  Moey,  128  .Mass.  .')H6. 

*  Lee  e.  Kilburn,  3  Uray,  SM. 

*  23  Uow.  420. 


TT* 


mm 


VKM>OK    AM)    I'URi;HAMKK. 


M)'} 


Tiims  of  Sale. 


they  could  1111  them,  and  for  hirjicr  (|iuuilitics  tlmri  they  were  iil)lc  to  proiliicc. 
Tbtj  plaintiff  alle<;ed  that  the  orders  had  beeu  unconditional,  and  liad  been 
accepted  williont  reservation.  The  diifendauts  gave  evidence  of  :i  custom  in 
Hair  business  to  fill  orders  received  of  customers  in  their  regular  order,  accord- 
ing to  date,  and  as  fast  as  tiie  articles  could  be  made.  It  was  held  in  the 
Supreme  Court  of  the  I'liited  States  that  the  Ciiso  must  l)e  decided  with  re<:;ird 
10  that  custom.  "NotJiiuj?  can  be  plainer,"  saiil  Mr.  Justice  Ci.ikkokd,  "than 
tiie  proposition  that  the  evidence  in  the  case  proved  that  the  suj)ply  with  the 
defendants  wa->  much  less  than  the  demands  of  tlnir  customers.  To  avoid  dis- 
.;iti>iaetion,  tiierefore,  tliey  were  oblisicd  to  devise  some  system  whicli  would 
1  liable  them  to  do  eciuai  justice  amomr  tliose  who  were  iirnpcrly  coiiiptiiiii;  for 
the  article.  Aeeordinfiiv,  they  adopted  a  ruU;  to  accept  all  such  recpiests,  and 
to  enter  the  list  in  a  book  kept  for  the  purpose,  and  to  till  tluin,  as  far  as  possi- 
hle,  i'l  the  onier  they  were  received.  They  had  i)een  in  business  lor  some  time, 
and  that  rule  had  ln'come  the  custom  of  tiieir  tratle,  and  as  such  was  well  known 
to  tiie  plaintiff'^  during  all  the  time  of  these  transactions.  Many  of  tluir  orders, 
thus  jriven  at  short  inleivals,  had  been  expressly  accepted  to  be  tilled  in  tuiii  or 
ill  course,  and  the  correspondence  plainly  showed  that  tlie  plaintiffs  well  knew 
what  was  meant  by  those  terms.  Kvidence  to  prove  that  the  orders  had  been 
liken  up  in  turn,  and  lilled  in  proportion  to  tlie  orders  niviii  by  other  customers, 
«•!<  therefore  admissible  in  order  to  show  that  the  defendants  had  fiillilled 
ilieir  contract  and  done  no  inju^iice  to  the  plaintiffs;  iind  it  is  eiiually  clear  that 
evidence  to  show  what,  had  been  the  usaue  of  the  defendants'  business  was  al-o 
admissible,  because  that  usage  constituted  an  essential  part  of  the  several  v'ou- 
trucls  which  were  tin;  subjects  in  controversy." 


§  157.  Term3  of  Sale  —  Price  —  Credit.  —  Whore  nothing  has  been  agreed  as 
t)  price,  or  the  contract  is  silent  thereon,  the  law  implies  a  promise  to  pay  at 
tiie  usual  market  rales.'  So,  in  regard  to  credit,  usage  is  relevant'  —  as,  the 
iisase  of  dry-goods  jobbers  in  IJoston  that  goods  not  purchased  on  a  cash  .sale 
are  purchased  on  a  credit  of  six  months  where  the  bills  are  not  marked;  ^  or  a 
usa;;e  in  the  flour  trade  that  where  the  contract  is  silent  upon  the  point  it  is  for 
cash,  but  the  purcliaser  has  ten  days  in  which  to  exaiuiiie  the  iroods.'  Such 
proof  may  often  be  of  importance  to  prevent  the  Statute  of  Liuiitalious  from 
(lefealin;;  a  recovery  for  the  price.^  A  usage  that  where  cotton  stoinl  in  a 
warehouse  is  found  to  be  in  a  damaged  condition,  the  warehouseman  shall  send 
it  to  a  pickery  to  be  "  picked,"  and  that  the  factor  shall  be  respnnsihlc  for  the 
expense,  is  reasonable  and  Itindiiiir."  And  evidence  of  usage  is  ailiuis>ibje  to 
show  that  on  a  sale  of  coal  shippcil  from  the  United  Slates  to  (,'anada,  tlie  pur- 
cliiiseis  pay  the  customs  duties  when  they  luud  the  goods  J 


'  Knnitiky  v.  Meyer,  49  N.  Y.  r>:\  ;  i'.ootli 
r.  I'ipice.  3S  N.  Y.  4G3;  Heiiiiett  r.  Drew,  3 
Hi)-\v.  S-Vi;  .Sturm  v.  W.iiiuiiis,  3S  N.  Y.  S.  C. 
(J.  A  s.)  32:(;  Harris  r.  ruiiuiiiu  i:.  Co.,  M 
N.  Y.  rtK);  Cliquot's  Chumpai^uu,  :t  Wall.  114. 

'  swan(Mttr.We>tKarth.4  ICiist.Vt ;  (.miliin 
<'■  ''wan,  i  Camp.  42tf;  UeHhIer  v.  liouib,  .')-.> 
HI.  M. 


»  Farn.swiirtli  r.  riiiise,  m  N.  II.  X\^. 
*  Scufl.Ier  r.  I>r,'i(tliiii'\ ,  KHI  M.is.;.  ysi, 
<<  I!iir.sli  r.  Ndilli,  40  I'a.  SI.  -.'41. 
-   IXishii  r.  IIdIIiiikI,  12  Alu.  .M;!.     And  see 
llDhiiesr.  Ciaylc,  1  Alu.  ."ii;. 

liiiiwn  t'.  McUuniiuU,  U  Uppor  CanHda 

0    li.oi'i 


^mBu^^^' 


iMC> 


IN   i>ikkkk»;nt  relations  ani>  o(;ci;rAri()N8, 


Vciidivr  jiiid  PiiiflKisiT. 


I. 


ii> 


n 


in 


!   ' 


1: 


§  IRH.  The  Rale  Caveat  Emptor — Warranties  on  Sales.  —  Onsiiiusoi  |;r[>ij:,:il 
proptirty,  wlierc  the  buyer  lias  an  opportunity  to  in-^poct  the  commodity,  mil  inc 
seller  is  f;uiity  of  no  fraud,  and  is  neither  tlie  manufacturer  nor  fiioncr  of  ti„ 
articles  he  sells,  the  niaxum  mrrat  emptor  applies,  and  the  buyer  talces  tlK>  ri.|< 
of  the  quality  upon  hinisi-lf.     This  doctrine  is  reco^rnized  by  the  Enjilish  our:-,' 
and  is  so  universally  accepted  in  this  country  that  the  courts  of  all  the  States  in 
the  Union  where  the  common  law  pri  vails,  with  but  one  exception,'-  sancticin  t.' 
Wlu'tlier  this  rule  can  be  controlled  to  any  extent  by  custom,  and  wluihcr  a 
warranty  may  be  implied  by  usaije  where  the  law  implios  none,  has  bi'i'ii  miii  h 
discussed  in  the  courts.     In  the  Knslish  case  of  Joans  v.  Bowden,'  it  was  prow  d 
that  In  auction  sales  of  certain  drugs  —  as,  pimento  —  it  was  the  custom  to  st,uii 
in  the  catalojiue  whether  they  were  sea-daniai;v(t  or  not;  and  in  the  aliscncc  oi  a 
statement  that  they  were  sca-dainaj^ed,  tluty  were  assumed  to  be  free  from  tliat 
defect.    The  court  held,  on  this  evidence,  thai  freedom  from  sia-ilam  lu'c  wis 
imi)liedly  warranted  in  tiie  case,  IIkatii,  J.,  referriuf;  to  a  Nisi  I'ruis  deciNitm  ,if 
his,  that  where  sheep  wcM't;  sold  as  stock  then;  was  an  implied  warranty  thai  tiu  y 
were  sound,  proof  havinu  l)een  given  that  such  was  the  custom  of  liic  tnilc.s 
This  ruling  is  referred  j.o  at  some  length  by  Mr.  Bhnjamin  in  the  last  eililion  .f 
his  work  on  .SVe^-s,  and,  relying  upon  it  as  an  authority,  he  states  it  as  a  u'liv  ::il 
rule  that  an  implied  warranty  may  result  from  the  usage     f  a  particular  iru,! . 
On  the  other  hanil,  in  the  American  case  of  Barnard  v.       •lo'jft''  it  was  liolii  'ly 
the  Sui)reme  ('ourt  of  the  United  States,  in  1870,  that  a  custom  of  dealers  iu  wiml 
in  New  York  and  Boston  to  imply  from  the  fact  of  sale  alone  a  warranty  from  thi; 
seller  that  the  wool  is  not  falsely  racked,  was  not  admissible  to  conlrol  the  <;'n- 
eral  rules  of  law  in  ndation  to  tht   sale  of  personal  property.'    Tin    s.iinc  v  i« 
was  taken  by  the  Supreme  Judicial  Court  of  Massachusetts,  in  18(i5,  cone  rnlrL'  a 
usage  in  the  hid<!  and  leather  trade  at  Boston  to  impliedly  warrant  all  ^'oods  to 
be  of  merchantable  quality.     "The  decisive  objection  to  its  recognition,"  said 
BiOKF-ow,  C.  J.,  "  is  that  it  embraces  an  element  directly  contrary  to  the  ancient 
and  well-established  rule  of  the  common  law  that  a  vendor  cannot  he  luhl 
responsible  for  the  quality  of  goods  sold  if  he  makes  no  warranty  or  repres<  n- 
tation  concerning  their  nature,  condition,  or  merchantable  value.      In  otlur 
words,  it  abrogates,  to  a  certain  extent,  the  maxim  caveat  emptor,  and  put^  on 


>  Clare  v.  Maynard,  7  Car.  A  1\  241 ;  ilall 

V.  Condor,  'i  C.  H.  (N.  8.)  22;  Karly  v.  Ourrctt, 
9  Hani.  &  Cicmh.  '.t2S;  .Spriiigwell  v.  Alli-n, 
Alcyii,  '.11 ;  2  KjirI,  118;  \Villiaiii»  r.  Allison,  2 
Kast,  4'ir);  Morley  i».  AtlcnborouRh,  ;J  Kxcli. 
600;  Hopkins  v.  Taii<iiioiay,  ISC.  U.  t;!0. 

-  The  Hiiiglu  CM^opliuii  i.s  South  (^uroiiiiii, 
whore  caveiU  rewfitor  is  the  rule.  See  Har- 
nard  r.  Yales,  1  Nott  *  M.  142. 

»  narnard  v.  Kclloj?^',  10  Wnll.iW:  WilliiiB^ 
r.  Consciiiia,  1  Pel.  C.  Ct.  1501;  lloUlcn  v. 
Dakin,  4  Johns.  421;  .Sweet  v.  Colifuie,  20 
Johns.  I'.Hi;  Hawkins  v.  Poinberton,  (>  Itobt. 
42;  Walsh  v.  Center.  1  Wend.  IS."!;  I'razier  t). 
ilarvoy,  34  Conn.  409;  Hadley  t:  Clinton, 
et.5.,  Co.,  1:J  Ohio  St.  .W2;  r,ord  t-.  Grow,  3!l 
Pa.  St.  *S;  Irving  i'.  Thomas,  18  Mc.  41.S;  Olts 
V.  Aldcrsun,  10  Smud.  &  M.  47U;  Dean  v. 


Mason,  4  (Jonn.  428;  Moses  i'.  Mead.  1  D  ino, 
378;  Kingsbury  v.  Tayjor,  2'.)  Me.  .")0>,  Wc-t  r. 
Cunningham,  9  Port.  104;  Sii\.is  r.  W.  i!  J 
Gaines,  48;  Wright  v.  Hart,  IS  Wend,  ft"; 
Johnston  v.  Cope,  3  Har.  A  .1.  8!»;  C'lzn  ■ 
V.  Wliittaker,  3  Stew.  &  P.  322;  TavMiiii  i: 
Mitchell,  1  Md.  Ch.  4'J«i;  Winsor  r.  I.niiiljail, 
IS  Pick.  59;  Whitaker  v.  Easlwick,  7,5  I'a.  M. 
229;  Jackson  v.  Wetherill,  7  scrtr.  *  It.  ««•: 
Pollioinus  V.  Heiman,  45  Cal.  .'■>T'.;  Murray  i: 
Smith,  4  Daly,  277. 

<  4Taiin.  .S»7,  iinfe,  p.  186. 

6  W.-all  I'.  King,  12  Kasl,  152. 

•  Ilonj.  on  Sales  (2cl  ed.),  i)ti.V». 

'  10  Wall.  .383,  port,  Chap.  V. 

»  And  see  Mi.xer  f.  Coburn,  II  Mete.  559; 
Casco  Man.  Co.  v.  Dixon,  3Cush.  407 ;  PeopIeV 
Hank  V.  Itogcrl,  10  Ilun,  270. 


T^'BWl 


■llWnvln 


VKNOUU    AM)    l'i;U(  IIASKK. 


807 


Cavoiil   F.M)[)t()r. 


of  |)tr^u!i:il 
ily,  iiii'l  t'lc 
iwer  oi  ilh 
iL's  tin-  ri-ii 
ish  I'ijun-,' 
U'  Slatt's  ill 
;uiK',li(in  It.' 
wiu.'lluT  a 
Ijci'ii  iiiu<h 
was  proved 
oin  to  stale 
ih^cuco  (if  a 
f  frmii  ihat 
laiiiiLCc  w.is 

:  (U'C.'i^iiili  of 

ity  tli.il  liicy 
llu'  lr:!'!i'.5 
st  cililioii  "f 
as  a  iTi  !'■  ral 
■ular  irai.i'. 
,vas  liolii  'ly 
iliTs  ill  wool 
iity  from  ttie 
Irol  tlio  j;"n- 
-aiiv"  v'l'vv 
;onc TnirL'  a 

all    '^ODlN  10 

lition,"  said 
I  till'  anci'iit 

ol  hf  liolii 
ar  represi'ii- 
Iii  otlur 

n(\  puts  (in 

■a.l.  1  D  sno. 
.,-|US  Wi'-l  1'. 
ts  r.  Wno  I   -i 
Weiiil   44t; 

!;  Tiiyiii'iii  f. 
r.  l.oiiibaiil, 
ick,  ;r>  I'a.  >>'■• 
•i-K.  *  !£•'«'• 
:.; ,  Murray  f. 


tlie  vpiidor  tlio  bnrflcii  of  warranty,  altlioiiirh  h«  may  be  ignorant  of  tlio  quality 
of  the  article,  or  may  have  had  no  means  of  asccrtaininj^  its  comlition  or  value, 
and  may  have  had  no  inlention  of  sellinii  the  article  witli  warranty.  Sucli  a  usa^r 
is  very  like  the  one  relied  upon  in  the  leading  case  of  Tlwmpson  v.  Ashtoii,^ 
whieli  was  hi-ld  invalid  and  of  no  effect  because  it  tended  to  introduce  vaij;iic- 
nc'ss,  confusion,  and  uncertainty  into  the  rules  rcirulating  the  riiihts  and  obliga- 
tions of  parties  under  contracts  for  the  sale  of  merchandise."'^  In  Pennsylvania, 
in  Sninnilfn  v.  Witnltu;^  decided  in  I8;U,  the  Suprenu;  Court  admitted  evidence 
of  a  usajie  in  the  city  of  I'liiladelphia  that  the  seller  of  cotton  warranted 
apiinst  latent  defects,  thonixh  there  was  neither  fraud  on  his  part  nor  actual 
warranty,  Cliief  Justice  (JinsoN  cutcrinu;  a  vitjorous  dissent.  Twenty-one  years 
later  Snnmlen  v.  Warder  was  disap[)roved,*  and  in  WetheriU  v.  Neilsoii''  was 
sDstantially  overruled.  It  is  held  in  Rhode  Island  that  the  barter  or  exchanjre 
of  a  promissory  note,  indorsed  without  recourse,  for  cotton  or  oilier  nierchaii- 
diso,  carries  with  it  no  implied  warranty  of  the  pastor  future  solvency  of  the 
maker,  the  rule  of  caveat  emptur  applying  in  the  absence  of  fraud;"  and  that  in 
such  cases  evidence  is  not  admissible  to  show  that,  accordinij  to  the  cusloin  of 
the  tra<le,  if  it  turned  out  that  tin;  maker  of  tlie  note  was  insolvent  at  the  time 
of  the  bargain,  the  s'dler  had  the  ri^iit  to  rcimdiale  or  rescind  the  contract.' 

§159.  Warranty  of  Goodness  —  Continued.  —  In  an  Ohio  case,''  a  usage 
ainoii'j;  tobacco  dealt  rs  in  (Cincinnati  to  warrant,  on  sales  of  tobacco  of  u  |)arlic- 
ular  description,  the  article  'o  remain  sound  and  merchantable  for  the  space 
of  four  months  after  the  sale,  was  admitted,  the  court  relying  upon  Junes  v. 
BowiUn?  But  in  New  York  it  has  been  held  that  usage  is  not  admissible  to 
show  tliat  the  sale  of  any  pa"' icular  article  implies  a  warranty  of  its  goodness. 
In  jT/iompson  v.  .ls/!<()(j,"' decided  by  the  Supreme  Court  of  New  York  in  1817, 
the  plaintiff's  agent  went  to  tiie  store  of  the  defendant  to  purchase  crocker,* 
ware,  and  the  latter  sold  hi  in  t'orty-six  crates  of  crockery- ware,  according  to  the 
printed  catalogue  of  certain  auctioneers  in  whose  store  the  crockery  was  for 
sale,  which  catalogue  conformed  to  the  invoice.  The  witness  aid  not  open  the 
crates;  but,  after  they  were  sent  to  the  plaintiff,  several  of  them  were  found  to 
be  bad,  consisting  of  ware  of  an  inferior  quality.  The  plaintiff  desired  to  rescind 
the  sale,  but  the  defendant  refusing,  he  brought  an  action  for  the  fraud,  and  on 
the  trial  offenul  to  prove  lliat  it  was  the  custom  and  usjige  of  merchants  in  this 
article  that  the  i)iirchaser  purchased  and  the  seller  sold  on  the  invoices,  without 
opening  the  crates  or  examining  the  ware  in  them,  and  that  it  was  the  uniform 
luulcrstanding  in  the  trade,  in  such  transactions,  that  the  exhibition  of  the 
invoices  amounted  to  an  understanding  on  the  part  of  the  .seller  that  the  ware 
was  good  and  merchantable.  Tin;  trial  judge  rejected  this  evidence,  and  tlu- 
plaintiff  was  nonsuited.  On  appeal,  the  court  sustained  the  ruling,  saying: 
"The  evidence  offered  of  a  usage  or  custom  in  relation  to  the  .sale  of  crockery- 
wun;  was  ])roperly  icjecttid.     No  custom,  in  tlie  sale  of  any  particular  descrip- 


II  Mete.  MS; 
.  407 ;  I'eopleV 


'  l.'MohiiB.  410. 

'  l)<ii|<l  v.  Furlow.ll  Allen, 426;  Uourilmaii 
r.  spioncr,  13  Allen,  ;<.'>:!.  And  see  Baird  v. 
MatthnwR,  tt  Dana.  1'2'V 

'  ;l  Ifiuvie,  101. 

'  Co.\fi  If.  Heialey,  lit  I'a.  »l.  243. 


■  '.'0  I'a.  St.  448. 

"  nicknall  ti.  Wutennun,  5  U.  1.  4:). 

''  Beckwith  v.  Farnuin,  5  K.  I.  230. 

•  Fntman  r.  Thompson,  2  Disney,  482. 

»  4  Tail  11.  483. 

•n  14  Johns.  316. 


1 


V-  i 


i? 


;;o.^ 


IN     DII'l'KUKM"    lilCLATlONS    AND    OCCl'I'A  IIONS. 


Vcnilor  ami  Piircliascr. 


lion  of  jj;oo(ls,  can  be  admitted  to  control  the  general  rules  of  law.  Such  a 
)»rln(;ii)le  <V(»iild  be  oxtreincly  pernicious  in  its  conse(|uenees,  tiiul  render  va-'ue 
and  uncerUia  all  the  rules  of  law  on  the  sale  of  chattels." 

j>  IGO.  Warranty  —  Sale  by  Sample. — The  rule  may  now  bo  rcsriirdcil  us 
/irnily  established,  says  Mr.  P.vuso.vs,'  that  where  goods  arc  sold  by  sami)!.',  ilic 
seller  is  held  to  warrant  tliat  they  correspond  with  the  sam|)lo.^  The  exhil):iioii 
of  a  sample  is  equivalent  to  an  afllrination  that  all  the  goods  sold  by  it  are 
similar.* 

Hut  if  the  sample  be  fairly  drawn  from  the  bulk  of  the  goods,  and  the  l)iilk 
<;orresi)onds  with  the  sample,  but  there  is  a  defect  in  both  sample  and  bulk,  and 
this  detect  is  unknown  and  iindiscoverable,  there  is  no  inii)!ied  warranty  miiiist 
I  his  def(!c.t,  and  the  .seller  is  not  responsible.*  .\  usage  in  opposition  to  tlii>  rule 
has  been  held  invalid  in  Mas-aeluisetts.  In  DtcUn.son  v.  Gay,'  the  sale  \va>^  of 
unprinted  satinet  clotlis  purcliased  of  the  manufacturer  by  sanipl!-,  anil  it 
appeared  that  the  bulk  of  the  goods  was  not  equal  to  the  sample;  tiiat  Uotli  the 
•-ample  and  the  bulk  of  the  goods  were  damaged  by  mildew,  and  thai  the  defect 
was  latent,  and  could  not  be  fliscovered  until  the  goods  were  printed.  Tin' 
defendants  offered  evidence,  in  an  action  for  the  price  of  the  goods,  of  a  usaj;e 
of  merehants  by  which,  in  such  cases,  the  .seller  should  make  good  to  the  pur- 
cha.ser  tin-  damage  occasioned  by  the  defect.  The  court  ailmitted  this  evidence, 
and  the  jury,  in  answer  to  special  questions,  found  that  the  u>age  existed;  that 
there  was  a  defect  in  the  goods;  that  it  diminislied  their  value  in  the  sum  of 
^1,450.23;  that  the  goods  were  not  c(|ual  to  the  sample,  and  tliat  this  last  defect 
dinnnishcd  the  value  of  the  goods  in  the  sum  of  S.">I7.18.  The  plaintiff  luul  a 
\erdict  for  the  balance  of  the  pv'wc  at  which  tlit^  goods  were  bargained  for, 
deducting  the  sum  of  $517.18,  thus  rejecting  the  effect  of  the  usage.  On  ajipiai, 
the  judgment  was  afllrmcd,  the  court  holding  that  the  deduction  of  S'dT.lS 
Avas  properly  allowed.  "The  .sale,"  said  Chai'M.vx,  J.,  "was  by  sample.  On 
such  a  sale  it  is  admitted  that  the  law  implies  a  warranty  that  the  bulk  of  tlic 
goods  shall  be  e(iual  in  (juality  to  the  sample."  Tlie  jury  have  found  that  these 
goods  were  not  equal  to  the  sample,  and  have  assessed  the  damages  at  $r)17.18. 


1  1  ParH.  on  Con.  ,5S8. 

■  2  Kent's  Coiinii.  481 ;  ItenJ.  on  Sales,  §fi48; 
(>i<>kiii»oii  V.  Gay,  7  Allen,  'ill;  Williams  v. 
S|K>ffor(l,  8  Pick.  2.50;  Oneida  Mnn.  Co.  v. 
I.awrcnoc,  4  Cnw.  440;  Gallagher  v.  Wavinp, 
it  Wend.  20;  ISoonnan  v.  .JenltinH,  12  Wend. 
")i>(i;  Waring  v.  Mason,  IS  Wend.  4-2.",  Uar- 
KonH  r.  Stone,  SN.  Y.  7:5;  ncirnc  f.  l>od(i,5 
N.  V.  9.->;  Pliillipi  t'.  (nive,  4  Uob.  (l.a.)  mtt; 
Hall  t'.  I'l,i.«!.san,  10  !.a.  An.  11;  Ifir.ks  v. 
Dillahunty,  8  Port.  140;  MaKce  v.  Killings- 
ley,  ;{  Ala.  619;  Hr.nntley  v.  Tlionms,  22 
Tex-is,  270;  Gunllier  v.  Atwell,  10  Md.  157; 
Otis  t'.  AMer.son,  10  Snicd.  &  M.  47B;  Hor 
rckins  v.  Itcvan,  3  Kawle,  37;  IlanHon  v. 
ItusHe,  in  111.  408;  l>ay  v.  HaRiict,  14  Minn. 
273;  Hr.iKKt'.  Morrill,  40  Vt.  -IS;  llradfi.rd  v. 
Manly,  Li  Musa.  1:18;  and  nute,  7  Am.  i>eo. 

m. 


3  .Story  on  Sales,  §  376;  Longiner  v.  Smith, 

1  Hani.  &  Cress.  1;  2  Dow.  &  IJy.  •.'.!;  llib 
berl  t'.  Shoe,  1  Camp.  113;  Parkinson  v.  Let', 

2  Kast,  314;  Hoebe  r.  ttoliert,  12  Weml.  4i:i; 
Parker  v.  i'alincr,  4  IJarn.  &  AM.  :!S7;  An- 
drews r.  Knceland,  6  Cow.  K>1;  Ilaslnigs  c. 
I-overing,  2  Pick.  219;  Sands  v.  Taylor,  .1 
Johnii.  35'.>;  Galling  v.  Newell,  9  Ind.  TiTJ; 
Moses  r.  Mead,  1  Penio.l'iS.');  Itose  r.  Ileaiiie, 
2NoU.&  M.  ryAS;  lirower  v.  Lewis,  lit  Itarb. 
074;  Ormrod  v.  Huth.  14  Mee.  t  W.  f.ii!. 

♦  Story  on  Sales,  §  37<! ;  P.irkinson  v.  I.ce, 
2  Ka.-.t,313;  Ormrod  v.  Ilulli,  14  Mee.  &  W. 
tiOil;  Carter  t\  Crick,  4  Ilun  &  N.  4i2;  Hua- 
thor  V.  AtwcU,  19  Md.  157;  Sands  v.  Taylor,  6 
Jolnm.  30.'i. 

i>  7  Allen,  29. 

•  Uradford  v.  Manly.  13  Mass.  139. 


VKNUOi;    AND    PlIKCIIASKK. 


309 


Sa'is  l»\   Msinufjictiinr. 


This  flum  is  therefore  to  be  deducted  from  the  ajrrcod  price."  But  the  iisajtf 
set  lip  in  the  case  was  udjtiduod  invalid.  After  ruviewiii.u  tiie  cases  in  whiclt 
usuijjes  in  opposition  to  rules  of  law  had  been  rejected,  Ciiai'Man,  J.,  said; 
•'Tiiere  is  no  necessity  for  such  usaj^es;  because,  if  the  parties  afj;ree  tiiat  there 
shall  be  a  warranty  where  the  law  iin|)lies  none,  they  can  insert  the  warranty  in 
the  bill  of  sale,  or  if  tlie  manufacturer  sells  without  warranty  he  can  so  express 
il.  Biu,  if  such  usages  were  to  prevail,  they  would  be  productive  of  inisunder- 
gUnding,  litigation,  and  frecjucnt  injustice,  and  would  be  deeply  injurious  to  tlie 
interests  of  trade  and  commerce.  They  would  make  it  necessary  to  prove  the 
law  of  the  Ciisc  by  witnesses  on  the  stand,  and  it  would  be  settled  by  the  jury  in 
each  particular  case.  Public  policy,  tlierefore,  rec|uiies  that  when  parties  assume 
obligations  which  the  law  does  not  impose,  or  release  obligation"  which  it  does 
Impose,  it  should  be  doue  by  express  contract."  In  a  Maryland  case  it  was  held 
that  evidence  was  competent  to  show  tiiat,  according  to  the  usage  of  the  tobacco 
trade  in  tlie  city  of  Baltimore,  a  purchaser  d<jes  not  look  to  the  seller  to  Insure 
a  correspondence  between  the  quality  of  the  tobacco  in  the  sample  and  in  the 
hogsheads,  but  relies  exclusively  upon  the  sample  and  the  lldelity  of  the  public 
inspector.'  Again:  tlie  mere  exhibition,  at  the  time  of  the  sale,  of  a  sample  of 
the  goods  does  not  of  itself  constitute  such  a  sale  by  sample  as  to  subject  the 
seller  to  liability  upon  an  implied  warnuity,  for  the  reusuu  that  such  sample  may 
only  be  shown  to  enable  the  purchaser  to  form  an  opinion  of  its  probable  quali- 
ties, without  any  intention  on  the  part  of  the  seller  to  warrant  all  the  goods 
sold  to  be  equal  to  it.'  The  seller  by  sample  is,  perhaps,  presumed  to  warrant 
that  the  bulk  is  of  *'io  same  kind,  and  etjual  in  <iuality  with  the  sample  in  refer- 
ence to  which  the  contract  is  made.  But,  to  enforce  such  a  contract  when 
denied,  it  must  be  established  by  evidence  of  the  acts  and  declarations  of  the 
parties  tending  to  prove  a  contract  of  sale  by  sample,-^  and  cam  ot  be  established 
by  proof  that  it  was  the  general  custom  of  persons  deaiiiig  iu  the  particular 
article  thus  to  contract.* 

§l(il.  Warranty  —  Sales  by  Manufacturer.  —  The  general  rule  of  law  that 
upon  the  sale  of  an  article  by  a  manufacturer  there  is  an  implied  warranty  thai 
it  will  answer  the  purpose  for  which  it  is  made,*  may  not  be  altered  by  usage; 
ts,  for  example,  by  a  usage  of  founders  not  to  warrant  their  castings  against 
latent  defects,  or,  in  the  case  of  patent  defer;ts,  to  be  entitled  to  have  the  cast- 
ings returuod  iu  a  reasonable  time,  and  to  have  the  option  of  replacing  them 


1  Gnntherr.  Atwcll,  10  Md.  157. 

•  Itii^rmi^  V.  Stone,  1  Sold.  73;  NVariiiff  v. 
Mason,  18  Wund.  4-25;  llmisdu  v.  Bus-i-,  45 
ni.  4»'i;  Towel!  V.  (jMlcMVond,  3  III.  li; 
Adiimsc.  Johnson,  ir>Ill.;M5;  Kuhl  v.  Linddr, 
Will.  11)5;  ItosG  V.  IJi'attio,  2  Nott  A  M.  5.".8; 
Browcr  v.  Lewis,  r.>  IJiirb.  B74 ;  Gardiner  v. 
Gniy,  4  Cinip.  144 ;  Powell  v.  IIortou,2  Bing. 
N.  C.  (iiw. 

'  Waring  v.  Mason,  is  Wend.  425;  O.sborn 
n.Ganiz,  60N.  Y.  540;  Hoyd  f.  Wilson, 83  Pa. 
St.  ;si<). 

*  Ik'Irno  V.  Uodd,  3  Sandf.  81) ;  B  N.  Y.  73. 

» OUivant  V.  Bi'ylcy,  6  Q.  B.  288;  Chanter 


V.  Hoi>kin8,4  Mee.  A  \Y.  399;  Jones  v.  Bi  Ight, 
5  BiiiR.  533;  Brown  t>.  Kdglngtoii,  2  Man.*, 
G.  27  );  (iiiney  v.  Attantio,  etc.,  U.  Co  ,  58  N. 
Y.  ;i5S;  Jones  t'.  Just,  L.  It.  3  Q.  15.  107;  I'oit 
Carbon  Iron  Co.  e.  Groves,  M  I'a.  .St.  14!»; 
Brown  r.  JIurpliee,  31  .Mi.iH.  91 ;  Field  v.  Kin- 
ncar,  4  Kan.  476;  Street  v.  Cliaimian,  20  liid. 
142;  Kingsbury  c.  Taylor,  29  Mo.  50<;  PaciUr 
Iron- Works  y.  Newliall,  34  Conn.tl7;  Hoe  r. 
Sanborn,  21  N.  Y.  h,M;  Bragg  i:  Mornll,4'J  VI. 
45;  Mason  v.  Cbaiipell,  15  i;ratt.  572;  GerBt 
V.  Jones,  lOCenr.  I..  J.  151;  Oigge  v.  Parkin- 
sou,  7  Uurl.  &  N.  ^55. 


I      I 


■ :  r 


;uo 


I.N     DIIIKUKNT    l{KLAIIi».\>     VXI>    OCCUPAriONi*. 


Vf'iiilcir  and   I'lirchaMsr. 


with  new  ones.'  But  t^virtfiici;  of  a  custom  of  rnanufacturers  of  ir(»n-r:\stinm  to 
Wfirraiil  tlio  quality  of  tlie  articles  niiule  by  tlicin,  witliout  an  express  contract  to 
that  effect,  is  aclinissil)Ie  in  an  action  ou  the  implied  warranty.* 


.< 


I    ' 


rli 


jr. 


■},. 


jif 


i: 


§  1<!2.  Pledgreor  and  Pledgree. —  It  was  intimated  In  Nr.i.sov,  C.  J.,  in  n\\  early 
New  Vorli  case,  tliat  on  a  simple  plediK;  of  stock  to  a  i)roker  as  collMtcnil 
security,  Ihou'jh  the  pledjjee  has  no  ri'jht  to  dispose  of  it  before  the  pledjjeor  fails 
to  comply  with  hiseii'j;a'.iement,  yctusaije  may  elianir"' this,  — c.^.,  the  •reiicral  ciis- 
toin  of  brokers  to  liypothecate  or  dispose  of  it  at  i)lcas;irc,  an  I  on  pavui  iit  (ir 
tender  of  the  principal  debt,  to  return  an  eipial  niimbirof  the  shares  of  th  •  same 
kind  of  stock.'  This  lanijuaite,  however,  was  ohitcr,  :'nd  has  been  disapiirovod 
hi  subse<iiiei)t  New  Vork  cases,  where  the  law  coneerninu:  plcd'^os,  and  the  effect 
of  customs  d(!roi;.i!ory  thereto,  have  b(!cn  con -id  red.  Thus,  in  Mi-f.na  i  v. 
Jmidon,*  the  defcMidants,  who  were  stock-brOAers,  purchased  certain  ^to -k^  for 
plaintiff  in  their  own  names  and  with  their  own  funds,  he  depositing  with  Mieni 
a  "  niary:in  "  of  ten  percent,  which  he  agreed  to  "keep  sjood."  Tiie  |ilahiliff 
havin<;  failed  to  "keep  the  margin  good,"  the  defendants  sold  out  the  stuck 
without  notice  to  him.  It  was  held  by  the  Court  of  Appeals  tiiat  the  relation 
between  the  parties  was  that  of  pledgeor  and  pledgee;  that  a  sale  under  such 
circumstances  without  notice  was  a  conversion ;  and  that,  in  an  action  by  the 
plaintiff  for  such  conversion,  evidence  of  a  usage  that  stock  held  as  in  this  case 
might  be  sold  by  the  broker  whenever,  by  the  fall  of  the  stock  in  the  mmket,  the 
"margin"  was  cxhan.sted  and  not  renewed,  was  ina<imissil)le,  because  in  (line. 
variance  with  the  rules  of  law  applicable  to  the  relation  of  the  parties.  "This 
was  an  offer,"  said  Hunt,  C.  J.,  njferring  to  the  evidence  rejected,  "  n  i  to 
explain  the  mcaiung  of  particular  terms,  or  to  prove  attendin'.:  eireunistancrs  to 
enable  the  court  to  construe  the  agreement,  but  to  change  the  rig'.its  of  the 
parties  to  a  contract.  By  the  law,  as  I  have  interpreted  it,  tiie  customer  dii!  not 
lose  the  title  to  his  stock  by  any  process  less  than  a  sale  upon  reasonable  notice, 
or  by  judicial  proceedings.  T!ie  broker  had  no  right  to  .sell  without  siu  li  a 
notice.  A  practice  or  custom  to  do  otherwise  would  have  no  more  force  \'x\n  a 
custom  to  protest  notes  on  the  llrst  day  of  grace,  or  a  custom  of  brokers  not  to 
purchase  the  shares  at  all  in  a  case  like  the  present,  but  to  content  llioin-ches 
with  a  memorandum  or  entry  in  their  books  of  the  contract  made  with  their 
customer."  Tliis  case  was  followed  seven  years  later  in  Baker  v.  Drake,''  decided 
in  187(i. 

§  lO;?.  Sales  by  Auction.  —  In  Atkins  v.  Howe,'^  goods  consisting  of  a  en'ie  of 
I'^rench  printed  muslins,  and  consigned  by  the  defendants  to  an  auctioneer,  were 
sf)ld  l)y  him  to  the  plaintiff.  Among  the  conditions  of  .sale  was  the  folhuviiiu', 
whii.'h  was  printed  on  the  catalogue,  and  read  by  the  auctioneer  Ixiforc  liie  >alu 
commenced:  "No  allowance  made  for  damage  on  sample  packages,  nor  on  any 
other  packiiges,  unless  applied  for  within  three  days  from  the  sale,  at  wliich 
time  the  bills  must  be  settled."    The  goods  were  not  returned  until  two  niuuths 


'  Whitmore  v.  South  Boston  Iron  Co.,  2 
Allen,  5-2. 

=  .Sumner  i>.  Tyson,  20  \.  II.  334. 
•'  Allen  r.  Pykors,  :t  Hill,  .WS. 
•  41  N.  Y.  iirt. 


■  Gfi  V.  v.  .'■)18.  And  see  Slenton  v.  ,!■  rome, 
f  i  .>'.  Y.  480;  Taylor  v.  Ketclium,  S  Itoitt  .M)?; 
Wheeler  v.  Ncwbould.  5  Duor,  iti;  IB  N.  Y 

•  18  Pick.  18. 


J*(^SHw.:, 


ir 


VKM>t)i:    ANU    I'UUCIIASKK. 


;ii 


Itc'scissinii  I  if  Contracts. 


ifu-r  the  sale,  when  the  plaintiff,  on  the  ground  that  they  w«!re  diiinii'^i'd, 
.ctiirncd  thcin  and  brouj^ht  an  action  for  Iho  prico,  contending;  on  tlie  trial  tiial 
iJH-  liinitatiua  of  three  days  in  the  conditions  of  sale  did  not  apply  to  the  owners 
if  poods  sold  at  auction,  and  offered  evidence  Hint,  according  to  the  custom  of 
iiiiTcluints  at  Boston,  i^oods  were  returned  l)y  purchasers  at.  auction  to  tiie 
owners,  and  received  by  tlu'in  or  allowances  made  after  the  ex|>iration  of  the 
tlinie  days,  if  within  a  reasonable  time  after  the  sale.  But  the  evidence  was 
ajiicled,  Sii.\w,  C.  J.,  saying:  "The  evidence  of  custom,  as  offered,  was 
phiinly  inadmissible.  Custom  is  often  of  importance  to  show  how  parties  are 
to  bo  understood  in  the  languase  which  they  have  used,  but  this  is  not  such  a 
case.  Here  was  a  claim  for  damage.  The  tenns  of  sale  were  that  all  claims  for 
(liimage  must  be  made  within  three  days,  and  ix-fore  the  bills  were  settled.  The 
usuu'e  had  no  tendency  to  alter  or  affect  the  terms  or  meaning  of  this  stipula- 
tion." The  usage  of  auctioneers  that  their  implied  warranty  shall  expire  after 
a  certain  lime,  at  the  expiration  of  which  time  the  parties  are  in  the  same  posi- 
tion as  if  no  warranty  had  been  given,  has  be«(n  adjudged  reasonalile  and  bind- 
ing u|i()n  purchasers.'  Where  a  party  purchased  at  an  auction  a  (piantity  of 
indigo,  notice  being  given  at  the  time  of  sale  that  it  would  be  sold  subject  to 
the  usual  tare  of  ten  per  cent,  it  being  afterwards  discovered  that  the  indigo 
wa,s  fraudulently  packed,  and  that  the  actual  tare  was  seventeen  per  cent,  he 
was  allowed  to  show  that  in  all  cases  of  fraudulent  packing  it  was  tlie  custom 
of  the  trade  to  allow  the  purchaser  the  actual  tare.' 


ly^Hi 


•  '■  «(• 


§164.  Rasciasion  of  Contract  by  Buyer.  —  When  a  sale  of  goods  is  made 
upon  false  n-prescntations,  the  purchaser  may  return  the  goods  and  rescind  the 
contract.'  Rut  if  he  be  silent,  and  ctmtinue  to  treat  tlie  prjperty  as  his  own,  he 
will  be  considered  as  waiving  the  objection,  and  will  be  as  conclusively  barred 
as  if  no  fraud  or  fraudulent  representaiion  had  occurred.*  In  this  connection, 
another  rule  of  law  is  well  established,  viz.:  that  the  purchaser  must  rescind  the 
whole  conti'dct,  and  rrturn  the  ichole  of  Vie  propurtij;  it  cannot  he  rescinded  in  part 
mdciiiUi lined  in  part.'    The  power  of  usage  to  alter  this  well-establislied  rule  is 


'  Bywator  r.  llichardRon,  1  Ad.  A  E.  508; 
Smart  v.  Hyde,  8  Mcc.  &  W.  rii.  And  see 
Deni'ton  v.  Perkins,  2  Pidc.  8(i. 

-  Sewall  1-.  Uibbs,  1  Hull,  (.(W. 

■' I'holps  V.  Quinn,  1  Bush,  ;i7.'>:  l{iKl>tcrv. 
Roller,  :il  Ark.  170;  Holbrm.k  r.  I'.iirt,  23 
Pick.  .Md;  Peters  v.  Gooeh,  4  Blackf.  .'il.'i; 
Bellamy  c.  Snbine,  2  Pliill.  I..  4>.'>;  I'iiitard 
'».  Mariin,  1  Siiied  &  M.  Cli.  12(!;  Caldwell  t'. 
CiMwcll,  1  ,J,  .1.  Mar.-<h.  .W;  Mixer's  Case, 4 
De  U.  A  ,1.  .VO;  Kinff  v.  Savory.  .5  11.  t..  Cas. 
ti'27.  All  dlFiM'  oil  his  part  is  sulUeicnt  witlioiit 
«n  actual  rrtiirn.  Smalloy  i*.  Ilendrieksoii, 
"•  N.  .1.  I,.  :i71;  Smith  v.  Smith,  :iO  Vt.  I.Ti; 
liiiniett  r.  Stanton,  2  Ala.  181 ;  Dill  v.  Camp, 
'-"i  .Ma.  249.  And  if  the  goods  arts  of  no 
value  to  either  party,  their  return  may  be 
ilispeiirti'd  with.  Love  r.OIdh;.ni,2»  liid.  HI; 
Garland  v.  Spencer,  46  Me.  628;  Christy  r. 
Cummins,  ^  Atcl.ean.  ;«6. 

VMcCulloch  V.  Scott,  13  B.  Mon.  I'S; 
Thomas  r.  Ilartow.  4tJ  N.  Y.  20O;  Jennings  v 


liroughton.S  I)c  G.  M.  ft  G.  !>^9■,  Boughton 
V.  Slandish,  48  Vt.  ,').•(;  Urymus  v.  Sanders, 
9:i  U.  S.  .5.'i ;  ituttur  v.  isiake.  2  Hayes  &  J.  liro ; 
Norton  v.  Vouug,  3  Mo.  30;  Miller  f.  Urovc, 
18  Md.  242. 

Shields  V.  Pcttee,  2  Sandf.  202;  Morse  r. 
Bracken,  98  Mass.  205;  Man-^fleld  v.  Trigg, 
ll:(  .Ma.ss.  :i.50;  Co.stigan  v.  Ilawkin-i,  22  Wi». 
74;  Campbell  t;.  Fleming,  1  Ad.  A  K.  40;  Wil 
loughliy  I-.  Moulton,  47  N.  II.  20'>;  Biicliciiaii 
V.  Iliirncy,  12  III.  :i3U;  Clarke  v.  Oicksini, 
El.  Bl.  &  El.  148;  Clay  t>. Turner, ;»  Bibb.  .52; 
Calassell  V.  Thomas, ;{  Leigh,  ll.'t;  Jopling  t*. 
Doolcy,  1  Yerg.  'JSM;  Bradley  t>.  Buslcy,  1 
Barb.  Ch.  12.');  K.iiiball  t>.  (Uiniiiiigham,  4 
Mass.  40.');  Connor  t'.  Henderson,  IS  .Mass. 
;5iy;  Minor  r.  Bradley,  22  Pick.  41)7,  Perley 
I-.  Balch, 'J:>  Pick.  28(>;  Jenkins  v  Simpson,  2 
Shi'p-  ."iVt;  Ccolidge  v.  Brigham,  I  .Melc.  ,547; 
Hunt  r.  Silk,  .5  Eas*,,  449;  Uiles  v.  Edwards, 
7  Term  Kcp-  "'1;  Thornton  v.  Wynn,  12 
Wheal,  is:!;  Pulslfer  t>.  Ilotchkiss,  12  (Nmn. 


I   H 


^>  : 


i:j!li 


'  ■■ ; 


I  »  I 


:ui 


I.N     iJiKi  KKKM'    CII.AllON.S    AM>    OCCUI'ATIONS. 


Voiidor  iiixl  I'lirdiiisiT 


well  Illustrated  by  the  case  of  Clark  v.  Baker.^  The  plaintiff  I'lirchaspd  of  Uip 
dt'foiiilint  a  ciirijo  of  yellow  ami  white  corn,  which  was  tlicii  lyiu'.^  on  Ixcml  it 
schooner  belon-.iin';  to  the  latter,  the  quantity  beinji  nnknouii.  Ho  iiu'ncil  to 
pay  a  ct-rtain  sum  per  bnsliel  for  the  yellow  com,  and  ai.otlii'r  >inn  jut  l)ii>hel 
for  the  white  corn,  the  (lefendant  warranting  it  to  be  of  a  descrihcd  <|iiiilit.v,  sukI 
(lid  pay  .'31,200  "  on  account  of  corn  \w.v  schooner."  The  sciioon;!r  was  haiiltd 
to  the  plainiiff's  wharf,  and  he  transferred  to  his  warehouse  a  part  of  the  corn, 
and  refused  to  receive  the  remainder  on  the  ground  that  ttu;  residue  was  not  of 
the  kind  the  defendant  had  warranted  it  to  be.  He  imuiediately  save  tl-x-  difind 
ant  notice  that  he  would  receive  no  more  of  his  cargo,  and  rcfiucstcd  liiin  to 
take  the  schooner  away.  The  corn  taken  by  the  plaintiff  aniouiHcd,  at.  tin 
agreed  price  per  bushel,  to  S1,0G7,  and  he  brought  an  action  to  recover  hai  k  tin 
difference  between  tliat  sum  and  the  81,200  paid  by  him  In  the  llrst  iu-tance 
The  defendant  set  up  that  the  contract  was  ejitire,  and  niaint'iined  that  the 
action  would  not  lie  without  proof  that  the  plaintiff  offered  to  return  tlie  corn 
which  he  had  accepted.  Tliis  objection  was  overruled,  and  the  plaintiff  had  a 
verdict;  but  on  appeal  the  defendant's  position  was  sustained  by  the  Sipieuu 
Court,  and  the  judgment  reversed  and  a  new  trial  ordered.  "  We  are  ol 
opinion,"  said  the  court,  "that  the  bargain  between  the  parties  was  an  "iitire 
contract  for  the  purchase  of  the  whole  cargo,  and  that  the  plaintiff,  not  liaviiii: 
rescinded  it,  cannot  maintain  the  present  action  for  the  portion  of  money 
advanced  by  him  on  the  whole,  which  exceeded  in  amount  the  value  of  that 
portion  of  the  cargo  actually  retained  by  him."  The  parties  afterwards  went  to 
trial  again,  and  the  defendant  again  objected  that  the  contract  was  entire,  ami 
that  the  action  could  not  be  maintained  unless  the  plaintiff  could  prove  an  offii 
to  return  the  corn  whicl;  he  had  accepted  and  received  into  his  store.  To  over- 
come this,  the  plaintiff  now  offered  to  prove  the  existence  of  tlu;  folhnvjnir 
usage  in  t!ie  port  of  Boston,  viz.:  Tliat  when  a  cargo  of  corn  is  sokl  in  l)iilk 
lying  in  the  vessel  in  wliich  it  is  imported,  and  the  sale  is  made  under  a  war- 
ranty, the  purchaser  receives  and  retains  so  much  of  the  corn  as  answer^  tlic 
warranty  and  rejects  the  residue,  which,  upon  such  rejection,  becomes  the  i)ro|). 
erty  of  the  .seller.  The  trial  court  admitted  the  evidence,  and  the  plaintiff 
again  iiad  a  verdict  and  judgment,  which  this  time,  on  appeal,  was  allM-ined. 
"  In  the  present  case,"  said  liiowiiY,  J.,  "  the  usage  found  by  the  jury  goes 
directly  to  estal)lish  a  rule  in  contravention  of  the  rules  of  the  coiiinion  law  in 
relatiou  to  rescinding  a  contract  in  a  case  of  sale  of  an  unsound  article,  aec  ini- 
panied  by  ii  warranty  or  induced  l)y  false  re|)resentations.  Tlie  general  nih.' 
of  law  requires  the  vendee,  if  he  would  rescind  the  sale  for  such  cause,  to 
restore  tlie  entire  commodity  purchased.  The  local  usage  proved  is  tint,  in  \ 
sale  of  corn  under  like  circumstances,  the  party  may  keep  so  mucli  of  tlu  com- 
modity as  answers  the  warranty  or  representation,  and  decline  taking  tlie  re>i- 
diie;  that  is,  he  may  rescind  the  contract  in  part,  and,  without  returning  the 
corn  lie  has  received,  may  recover  back  the  money  paid  for  so  much  of  the 


210;  I.P{?sett  V.  Cooper,  2  Stark.  N.  P.  103; 
IJurtiin  r.  .Stewart,  ;t  Wend.  236;  Vnorhces  v. 
Kill],  2  Hill,  288;  bievens  t>.  Cii>hin;r,  I  N.  II. 
17;  \Va  (Iniston  ».  Oliver,  2  Bos.  &  I'ul.  (il; 
OxciKlale  i;.  Wetherell,  9  Uarn.  A  Cress.  38G; 


Batdey  v.  P.arker,  2  Uarn.  .tOcss.  ;!7;  Shdw 
V.  IJailger,  13  Seig.  &  U.  275;  Ho\vker  r.  Iloyt, 
18  I'icli.  .V).). 

>  5  iMetc.  452;  11  Mctc.  ISO. 


?:: 


VK\i)(»i{  A.\i>  riJKfUAsKi:. 


318 


Dclivciv  of  (JixkIn 


§105.  Delivery  of  Goods  —  Passing  of  Title.  —  Evidence  of  nsa'jre  to  vary 
the  ordinary  rules  as  to  the  passing  of  title  on  the  delivery  of  goods  has,  in  a 
number  of  cases,  been  rejected.  Altliouu;h  where  fj;oods  are  sold  for  cash,  and 
the  seller  delivers  them  to  the  purchaser  upon  the  faith  of  his  payiiii;  cash,  and 
Iminuiliately  demands  it,  but  the  buyer  refuses  to  pay,  the  delivery  is  not  abso- 


article  as  does  not  answer  the  representation.  This  iisanc  is  certainly  not  an 
unreasonable  one,  and  not  to  be  rejected  upon  that  v:round.  The  naiure  of  the 
coiiiinodity,  the  niauner  of  cxposini;  the  article  for  sale,  the  price  beinu  (ixed 
by  the  l)ushel,  and  the  mode  of  delivery,  all  alike;  point  out  this  as  a  reason- 
able and  convenient  usaj^e.  We  understand  the  contract  to  liave  been  an  oral 
one.  Such  bcins  the  ca.se,  the  admission  of  the  evidence  of  the  usaije  is  not, 
objectionable  upon  the  ground  of  its  being  offered  to  control,  vary,  or  contra- 
dict a  contract  in  writing.  Nor  does  the  usaire  contradict,  any  express  oral  con 
tract  made  by  the  parties.  Had  it  done  eilhir,  it  would  have  presinited  a  v(m\\ 
different  question.  Usages  of  this  ciiaracter  arc  only  admissible  njion  the 
hypothesis  that  the  parties  liave  contracted  in  relcrence  to  tliem.  If  llie  |)a;  lies 
raakc  express  stipulations  as  to  the  terms  of  a  sale  or  the  manner  of  peifurm- 
ance  of  a  contract,  or  state  the  conditions  upon  which  it  may  be  rescinde.l,  such 
express  stipulations  must  be  taken  as  tlic  terms  of  tlic  cunt iMct,  and  tliey  are 
not  to  I >c  affected  by  any  usage  contrary  to  them.  LookiuLrat  i  c;  usage  nlied 
upon  in  tlie  present  case,  and  taking  it  to  have  been  found  In  tlie  jury  to  In- 
well  establif  !"!d  by  the  proof  as  a  general  usage  of  tlie  dealers  in  similar  com- 
modities  in  ijoston,  and  tinding  the  same  is  not  repugna'  lo  any  expres  siiim- 
latiou  in  the  contract  of  llu!  parties,  witliout  any  disp')sition  on  lite  part  of  tin- 
court  to  ext'  n.'  lie  doctrine  of  local  usage  beyond  tiu'  adjudic;  ed  ca-cs,  yet 
we  have  not  felt  authoii/i-d  to  reject  the  evidence  offered  iii  the  present  ra-;."' 
But  'losetpiently,  in  Murs/'  v.  Brackett,*  the  case  of  Clnrk  v.  Bdkvr  was  dj^- 
tinguislied,  and  on  a  very  sliglit  pretext  a  custouj  in  tiu;  wool  trade  by  wlucli  a 
pnreiia-ier  might  return  a  single  bale  of  wool  not  answering  to  the  warranty,  and 
retiiiii  the  rest,  was  rejected. 

Tlie  contract  must  be  rescinded  within  a  reasonable  time;  and  for  ,his  pur- 
pose tlie  vendee  must  examine  tlie  goods  without  unnecessary  delay.  If  goods 
are  piirciiased  in  original  packages  of  a  wholesale  merchant  by  a  dealer,  and  it 
is  the  custom  not  to  examine  such  goods  until  opened  by  tlic  dealer  to  sell  to 
hi.s  customers,  an  examination  made  by  him  when  he  opens  the  packages  to  sell 
to  customers  will  be  considered  as  witliin  a  reasonal)le  time,  provided  the  goods 
arc  offered  for  sale  in  due  course  of  trade.*  And  a  custom  of  a  particular 
market,  tliat  when  corn  is  sold  by  sample,  if  the  buyer  does  not  on  th('  day  it  is 
sold  (  xamiuc  the  bulk  and  reject  it,  he  cannot  afterwards  reject  it  or  refuse;  to 
pay  the  whole  price,  is  reasonal)le  and  binding.^  So,  a  usage  that  the  proper 
storiiij:  of  lierring  when  receiving  it,  without  immediate  examination,  does  not 
waive  ()l)/ctioiis  to  quality,  is  admissible.*  But  a  vendor  of  butter  witli  a  war- 
ranty eaimot  set  up  a  local  usage  that  he  Is  not  Iwbie  lo  take  it  back  unless  tlie 
purchaser  examines  and  returns  it  immediately  after  delivery.* 


\m^. 


>  98  MiisB.  205. 

•  Doiniu  c.  iJiiidlMm,  "0  111.  l.'U. 

*  SauUers  v.  Jameson,  2  Car.  &  Kir.  557. 


*  ITcnkcl  V.  Welsh,  41  Mich.  664. 
•^arsliall  V.  Perry,  87  Me.  78. 


314 


l\    inFFEKKM'    KliLATlOAS    AND    OCCUPATIONS. 


Vendor  and  Purchaser. 


lute,  but  only  conditional,  and  the  seller  may  reclaim,  the  title  never  havin:; 
passed  away  from  him;'  yet,  where  Vieij  are  sold  for  cash,  to  he  paid  for  oh  ii-Hii- 
ery,  either  in  cash  or  commercial  paper,  and  they  are  delicered  without  exacting  thf. 
money  or  the  securities,  the  delivery  becomes  absolute,  and  the  title  thereby  rests  in 
the  purchaser.''  Tliese  rules  are  established  by  numerous  authorities.  Tlnre- 
fore,  in  Smith  v.  Lynvs,^  a  Msi'^a  of  trade  that  on  a  sale  of  goods  for  cash  they 
are  delivered  to  tlie  buyer  without  payment  or  demand  of  payment,  and  after  a 
few  days  a  bill  of  the  goods  is  sent  to  the  bu3'cr  and  the  price  demanded,  and  in 
the  meantime  the  seller  retains  a  lien  on  the  goods  for  the  price,  and  tiial  such 
a  delivery  is  conditional,  has  been  held  contrary  to  law,  and  invalid ; '  so,  also,  of 
a  usage  of  trade  that  the  delivery  of  an  order  for  flour  by  the  seller  to  tlie  buyer, 
tne  receipt  thereof  by  him,  and  his  presentation  to  the  drawee  of  it,  tlie  s(  Her 
not  being  notiiied  of  the  non-acceptance  of  the  order,  is  a  delivery  of  the  Hour 
sold.*  "  What  is  delivery,"  it  is  said  in  the  last  case,  •'  is  a  question  of  law,  and 
not  of  opinion.  It  is  not  within  the  legitimate  province  of  custom  to  control, 
or  at  all  interfere  with  a  question  of  this  kind."  A  usage  to  sell  Hour  in  store 
by  order,  and  to  pass  it  l)y  the  transfer  of  the  order  from  hand  to  iiaud,  without 
actual  delivery  of  the  Hour,  has  been  recognized  in  Virginia.*  Where  a  seller 
revokes  an  order  before  the  goods  are  delivered,  a  usage  that  sucii  an  o.d  ir 
vests  the  title  eo  instawti  in  the  purchaser  will  not  avail  the  latter.'  Ami  n.s!ip;c 
cannot  convert  a  voluntary  and  unqualified  d<'livery,  witliout  payment,  of  ijooils 
sold  for  cash  into  a  mere  deposit  for  examination.* 

But  evidence  of  custom  has  been  admitted  to  show  that  a  delivery  to  a  civ- 
rier  in  the  usual  and  ordinary  course  of  business  transfers  the  property  to  the 
purchaser,  and  that  the  rislv  from  that  time  is  the  risk  of  the  purchaser;*  that  in 
the  boot  and  shoe  trade,  when  shoes  are  ordered  of  a  manufacturer  by  a  pur- 
chaser at  a  distance,  it  is  the  usage  of  the  business,  where  no  special  mode  oJ 
conveyance  is  mentioned  by  the  purchaser,  for  the  manufacturer  to  take  the 
goods  to  a  certain  point  at  his  own  risk,  and  there  deliver  them  to  some  regular 
line  of  packets  running  to  the  purcliascr's  place  of  business,  and  take  duplicate 
bills  of  lading,  and  forward  one  of  them  ^i  the  purchaser  by  mail,  and  from  that 
time  the  delivery  is  complete  and  the  purchaser  takes  the  risk  of  loss; '"  that  the 
seller  of  goods  who  delivers  them  to  a  railroad  company,  to  be  first  transpt)rted 


'  Oaborn  v.  Gantz,  G  N.  Y.  B40;  Fcrjfiison 
t).  Clifford,  37  N.  11.  86;  Uonning,  etc.,  Co.  ». 
Miller,  7rhila.97;  Harding  v.  Motz,  1  Tcnn. 
Ch.  010;  Gardner  v.  Clark,  21  N.  Y.  301); 
KusscU  r.  Minor,  22  Wend.  659;  Acker  j. 
Campbell,  2?  Wend.  372. 

-  Smith  V.  Lyncs,  3  Sandf.  203;  x.  c.  5  N. 
Y.  42;  Chapman  t'.  Lathrop,  C  Cow.  110; 
Lupin  V.  Blurie,  0  Wend.  77;  Furni.ss  v. 
Hone,  8  Wend.  2-17 ;  The  People  r.  Haines, 
14  Wend.  516;  Cailtnn  v.  Sumner,  4  I'ick. 
516;  Smith  v,  Uennic,  6  Pick.  202;  Hus- 
tiey  V.  Thoi'ntoii,  4  Mass.  4a'>;  Shindler  v. 
Houston,  1  DiMiio,  Hi;  Buck  t*.  (irini-liaw, 
lEdw.  Ch.  144;  Paul  t>.  Heed,  52  N.  H.  136; 
Mixer  v.  Cock,  31  Me.  3i0;  Farlow  v.  Ellis, 


15  Gray,  229;  Bo  wen  v.  Bark,  13  Pa.  St.  146; 
Pitts  V.  Owen,  9  Wis.  152. 

3  3  Sandf.  20:5 ;  «.  c.  5  N.  Y.  42. 

••  IJut  see  Haggerty  r.  Palmer,  G  Johns. 
Ch.  437. 

''  Suydam  v.  Clark,  2  Sandf.  133. 

0  PleasantdW.  Pendleton,  6  Hand.  473;  18 
Am.  Dec.  726. 

■  South. Western  Freight  ,t  Cotton  I'rcs^ 
Co.  t).  Stanard,  44  Mo.  71;  OI)i!r  v.  Cai-.so.i.di 
Mo.  209.  But  see  Kumiss  i-.  Ilonc,  S  Wend. 
247;  Stnnton  v.  Small,  3  Sandf.  '.'iO. 

■i  Hiwking  V.  ^Y  irren,  115  Mass.  514. 

»  Magruderr.  Gage,  33  Md.  ;U4. 

>o  I'atuain  V.  Tillutiion,  13  Mute.  517. 


\  MNDOi:    AM>    I'bKCUASKU. 


.'J  1ft 


PilVlUdllt. 


on  their  road  md  then  forwarded  by  steamboat,  should  take  out  an  iuternal 
bill  of  lading,  and  send  it  to  tlie  purchaser  at  or  about  tlio  time  of  dispatcliin^ 
the  soods.'  The  custom  of  merchants  in  Galveston,  in  dealing  with  country 
miMchants,  that  the  seller  lias  not  performed  his  duty  or  parted  witli  the  prop- 
erty in  the  poods  until  he  has  boxed  them,  delivered  them  to  a  carrier,  and 
taken  a  bill  of  lading,  was  admitted  in  a  Texas  case  to  ascertain  when  the  prop- 
erty in  goods  sold  to  a  country  merchant  passed.* 

In  }fcldrumv.  Nivno*  it  appeared  that,  as  beer  cannot  be  removed  in  warm 
wcatlicr  witiiout  injury,  there  was  a  custom  among  brewers  and  retailers  for  the 
fiiniicr  to  deliver  to  the  latter  in  the  spring  as  much  beer  as  he  expected  to 
sell  in  the  ensuing  season,  in  barrels  belonging  to  the  brewer,  which  are  to  be 
returned  to  him  when  empti(!d.  The  retailer  pays  for  all  that  he  sciils  during 
tlu!  season,  at  tlio  price  at  which  it  was  originally  furnished,  but  if  any  of  it 
becomes  sour  or  stale,  or  is  lost  by  the  bursting  of  casks.  Are,  or  other 
ciisiialty,  the  loss  falls  on  the  brewer;  and  if  any  beer  remains  unsold  at  the  end 
(if  the  season,  tlie  retailer  has  the  right  to  return  it  to  the  brewer,  but  the  latter 
lias  11')  right  to  take  it  without  the  retailer's  consent.  Payment  is  never  made  in 
iulvance;  the  brewer's  price  never  varies,  and  the  profits  of  retailing  belong 
exclusively  to  the  rcjtailer,  who  bears  all  losses  of  bad  debts.  It  was  h(!ld  that, 
under  these  circiiiiistances,  beer  so  delivered  was  not  liable  to  attachment  as  the 
property  of  tlie  retailer.*    See  also  Priestley  v.  Pratt.-' 

§  16G.  Payment.  —  Where  no  time  for  the  payment  of  goods  sold  and  deliv- 
ered is  fixed  by  the  contract,  the  price  becomes  due  and  payable  as  soon  as  the 
(lilivery  is  completed.*  But  where  a  uniform  custom  and  course  of  dealiug  on 
the  part  of  the  seller  to  demand  payment  at  the  close  of  each  month  is  shown, 
anil  this  custom  is  known  to  tlie  purchnser,  an  implied  contnict  arises  that 
credit  shall  be  given  until  the  close  of  the  month  for  all  materials  delivered 
during  the  month.' 

The  possession,  by  the  acceptor,  of  a  diwift  drawn  with  a  blank  for  tlie  name 
of  the  payce,^  or  the  production  of  defendant's  order  in  favor  of  a  third  person,* 


'  Johnson  v.  Stoddard,  100  Mass.  306. 

»  Woods  i>.  Half,  44  Texas,  (iSS.  And  qee 
nagpeity  v.  Palmer,  C  Johiia.  OR.  4;i7; 
Keeler  r.  Field,  1  Paige,  312 ;  ITurnisa  ».  Hone, 
8Wfii(I.!m. 

'  9  I'ir.k.  441. 

*  "  It  lieitig  licncflcinl  to  the  community  to 
intrmluce  Uie  use  of  beer,"  said  llio  court, 
"liulilie  policy  would  justify  us  in  favoring 
the  custoiii." 

■'  Ante,  \\.  101.  And  see  Doyle  v.  Lasher, 
10  Upper  Canada  C.  P.  2(!;!. 

•ShftGt  ti.  Rlay,  2  Ham.  A  Adol.  Vt6; 
Hnally  i».  MfLaine,  10  IMng.  482;  Kiiprs  «. 
Miniu'it,  11  Kast,  210;  Oliainbei-fl  i-.  Miller,  13 
C.  I?.  f\.  s.)  12.">;  Martine^ui  v.  Kitehing,  L. 
B.  7  Q.  11.  4J(J;  Oastlc  i>.  Play  ford,  L.  U.  7 


Exch.  98;  Uobbins  v.  Harrison,  31  Ala.  160; 
Metz  V.  Albrccht,  52  III.  401;  Kitzpatrick  v. 
Fain,  3  Coldw.  15;  Soutli  Western  Freight 
Co.  V.  Plant,  45  Mo.  617;  Coil  v.  Willis,  18 
Ohio,  2S;  Davis  v.  Adains,  18  Ala.  2til;  Cas- 
scll  V.  ISackrack,  42  MisH.  6(t;  Uoldsmith  v. 
Bryant,  26  Wis.  34;  Uieheii  i*.  O'Dounell, 
34  .N.  J.  L.  408;  Miller  v.  JoneH,  OG  Barb.  148. 

'  PlKC'iix  Mutual  Ins.  Co.  v  Hatchen,  6 
Bradvv.  021.  And  see  Salmon  Kails  Man. 
Co.  V.  Goddard,  14  How.  41t>;  Audtiu  v.  Ding- 
ham,  31  Vt.  577. 

"  Close  V.  Fields,  9  Texas,  422. 

»  Zcigler  V.  Gnty,  12  Suig.  &  It.  42;  Bloaat 
V.  Starkey,  1  Tayl.  110;  s.  c.  •_'  llayw.  (N.  O.) 
7.1;  In  re  F»cnny,  14  I^ii.  An.  194;  Weiduer  t», 
S    .weigart,  9  Havg.  &  U.  3d6. 


1  '%! 


I  "S 


316 


IN    l)IKFKlti:\r    RELATIONS    AND   0(X3l]|'A  I'lONS. 


Vendor  and  Piin-hasor. 


1^ 


yi' 


I 


-m 


la  prima  facie  evidence  that  the  draft  had  been  in  circuhilion,  and  iiad  been  taken 
up  by  the  acceptor,  or  of  payment  according  to  its  tenor.  But  tliis  prosumptioi) 
may  be  rebutted  by  proof  sliowing  the  possession  as  acquired  witliout  pay- 
ment—  as,  by  a  custom  to  leave  drafts  with  the  payee  for  acceptance.'  So,  i;i 
an  action  by  a  banl?  against  oue  of  its  customers,  it  is  competent  to  show  the 
custom  of  the  bank  to  enter  payments  on  account  of  an  indorsement  on  tin,' 
indorser's  bank-book,  in  order  to  rebut  the  presumption  that  such  an  entry  was 
a  deposit,  and  not  a  payment.'  And  a  custom  for  the  merchants  in  a  certain 
city  to  retain  the  notes  and  bills  of  their  country  customers,  paid  by  thum,  until 
a  settlement  at  the  end  of  the  year,  is  admissible.*  The  presumption  that  niakiiis: 
a  negotiable  note  extinguishes  the  original  demand,  may  be  overcome  by  proof  of 
a  contrary  usage.* 

Tlie  burden  of  proof  of  payment  of  a  debt  is  upon  the  debtor.  As  a  general 
rule,  the  mere  fact  of  mailing  the  amount  of  money  due  tlio  creditor,  in  a  letter 
addressed  to  him  at  his  place  of  business  or  his  residence,  in  tlic  absence  of  any 
directions  by  him  to  so  remit  it,  is  not  prima  facie  evidence  of  pi.yinont;  '■>  ami 
this  is  so,  even  tliough  the  letter  was  registered."  But,  to  overcome  this  presump- 
tion, the  debtor  may  show  either  an  express  direction  from  the  creditor  to  m) 
remit,  or  a  usage  and  course  of  dealing  from  which  such  an  assent  nviy  he 
inferred.  Then  the  transmission  is  at  the  risk  of  the  creditor.  Thus,  it  was 
saiil  by  Lord  Kknyon  in  an  old  case:  "  Had  no  directions  l)een  given  aijout  the 
mode  of  remittance,  still  tliis  being  done  in  the  usual  way  of  transacting  hu>.i- 
ness  of  this  nature,  I  should  Iiave  held  the  defendant  clearly  disciiarged  from  ihe 
money  he  had  received.  It  was  so  determined  in  the  Court  of  Cliaucery  forty 
years  since."' 

In  the  absence  of  contract,  there  is  no  implied  agreement  on  the  part  of  the 
purchaser  to  pay  the  expenses  of  packing  the  goods,  or  otherwiso  putting  tlkiii 
in  order  for  delivery.*  But  evidence  of  usage  is  competent  lor  the  purpose  of 
showing  whicli  party  is  chargeable  with  the  expense  of  packing,  wrappers,  and 
cases;  "  and  in  an  action  between  a  manufacturer  of  picture-t  anios  ami  a  dealer 
in  thv^ui,  the  dispute  being  as  to  which  should  pay  freight  on  frames  sold  to  tin; 
latter  l)y  the  former,  evidence  of  a  usage  between  manufacturers  and  dealer-  in 
the  place  where  the  goods  were  made  and  sold  that  the  manufacturers  should 
pay  freight,  was  held  admissible.'" 


§  1G7.  Interest  —  When  allowed  by  Custom.  —  Interest,  without  an  agreement 
therefor,  is  not  allowed  by  law  upon  unli(iuidated  accounts  for  goods,  waris. 


'  Clo-c  V.  Fields,  9  Texas,  122.  And  see 
Alvord  r.  Baker,;)  Wend.  325;  Kico  v.  Ighaiu, 
4  Abb.  Aii|).  I)0(!.  :!7. 

-  Slierer  v.  Kasion  Hank,  3U  Pa.  St.  IS"). 

3  Ueujy  V  Onlfee,  4  Ala.  ;i(i5.  And  see 
Winana  v.  Ilassey,  IS  (.tal.  B;M. 

*  Varncr  v.  Nobluboniugh,  2  Mc.  121. 

s  Crane  v.  I'ratt,  12  Gray,  ;14S;  Walter  v. 
llaynvtt,  Ryan  &  M.  149;  Wakctleld  v.  L,ilh- 
gow,  3  Mass.  249. 


«  First  National  Bank  v.  McMaiiigIc,  ii9 
Pa.  «t.  im. 

'  Warwieko  v.  Noaken,  I'oalio  X.  1'.  0". 
Hawkins  v.  Rutt,  I'cako  N.  V.  1S7;  (Junuy  r. 
Hitwo, !)  Gray,  404. 

"  (;.»lo  V.  Korr,  20  Vt.  21;  Burrv.  William>, 
23  .\rk.  24 1. 

Oolo  V.  Kerr,  supra;  Robinson  v.  Uniied 
Stalo»,  13  Wall.  363. 

>'  Howe  V.  Uardy,  106  Mass.  329. 


•1 


VKNDOK    AND    PLiRCUASEK. 


317 


lii'.Tf-^i   Allowod  hv  Custom. 


and  merchandise;'  tor  work  done,^  or  on  book-accounts.'  In  Henry  v.  Eisk,^ 
decided  in  the  Supreme  Court  of  Pennsylvania  in  1788,  the  court  refused  to 
allow  evidence  of  a  custom  of  the  trade  to  charge  interest  in  such  cases.  The 
action  was  brought  for  goods  .sold  and  delivered  in  the  city  of  Philadelphia,  the 
pluiutilif  liaving  charged  interest  upon  his  account  after  si.x  months'  cruilil.  The 
il<;ht  to  do  this  was  the  only  question  In  the  cause,  and  thi;  plaintiff's  comiscl 
offered  to  prove  by  witnesses  that  it  was  the  custom  of  the  trade  in  Pliiladelphia 
to  allow  interest  under  yucn  circumstances.  But  McKean,  C.  J.,  ruled  that, 
interest  not  being  recoverable  on  such  accounts  at  law,  the  custom  Wi»  .  not 
admissible,  saying:  "The  point  has  been  repeatedly  determined  otherwise  in 
this  court  as  well  as  in  the  courts  of  England;  and,  therefore,  witn  sscs  cannot 
be  admitted  to  contradict  the  establislied  principles  of  the  law."  But  this 
decision  has  been  long  overruled  in  that  State,  and  the  practice  of  the  mer- 
chants of  Pittsburg  and  Philadelphia  to  charge  interest  on  their  accounts  after 
six  months  is  now  judicially  noticed  in  the  Pennsylvania  courts.* 

And,  in  a  number  of  cases,  evidence  of  usage  has  rendered  charges  for  interest 
under  such  circumstances  recoverable  at  law."  In  one  of  these  It  was  said : 
"From  the  practice  which  has  generally  obtained  in  this  State,  from  the  known 
usa^e  and  custom  of  Mr.  llaymoiid  [the  creditor],  as  well  as  of  other  merchants, 
to  cast  interest  on  their  accounts  after  six  months,  we  think  there  was  an 
implied  contract  on  tlie  part  of  Dr.  Isham  to  pay  interest  after  the  usual  time  of 
credit.'"  In  anotlier:  "We  do  not  think  the  charge  of  interest  on  any  part  of 
the  account  objectionable.  The  plaintiff  proved  that  the  defendant  was  one  of 
his  customers,  and  that  he  always  charged  interest  on  his  accounts  after  ninety 
days.  The  uniform  custom  of  a  merchant  or  manufacturer  is  presumed  to  be 
known  to  those  who  are  in  the  habit  of  dealing  with  him,  and  in  their  dealings 
are  supposed  to  act  with  reference  to  that  custom.""     In  another:  '•Although, 


I  Von  nia  r.  Nixon,  1  Pet.  C.  Ct.  224;  Held 
V  Koiis^olaer  Glass  Fiic.tory,  3  Cow.  393;  5 
Cow.  jS'.i;  Adaina  Express  Co.  t».  Sliltoii,  11 
Iiu<h,  4'.t;  Uraily  v.  Wilc.oxsoii,  44  Cal.  ■'  ' ; 
Haiixhui-st  V.  Iluvcy,  26  Vt.  544;  Gilniiiii  r. 
Vaui;li:iii,  44  Wis.  640;  Marsli  v.  Frazer,  47 
Wis.  HI);  TutkiM-  V.  Ives,  6  Cow.  1!)3;  Kane 
(■..Smith,  VI  Johns.  l.J6;  Conscqiia  v.  l-'an- 
iilnc;,  ;!  JoliiiR.  Ch.  r)S7;  Mcluiiglit  v.  Uunlnp, 
1  ll;irl).  SO. 

-  Henry  v.  Risk,  1  Dall.  '265;  Harrison  v. 
Ilamiloy,  1  l!ibl>,  44:'.;  Murray  v.  Ware,  1 
I'.Ibb,  ;wr>;  Van  I'.ouren  v.  Van  tiaaslicck,  4 
I  o\v.  1%;  r.rewcr  v.  Tyringliani,  12  I'ic.k.  547 ; 
I'oyle  II.  fit.  .James'  Clmrcli,  7  Wend.  178, 
lioff  f.  Kohoboth,  2  Cusli.  47.");  Stinijj.son  r. 
•  iicen,  i:'.  Allen,  ;iJ(i;  IVilnicr  r.  Slockwell, 
i  tiray,  2:;7;  .Spragiie  v.  Sprague,  30  Vt.  4S3; 
Adams  Kxpress  Co.  v.  Milton,  It  Hush,  4!); 
.\i.iee  t'.  WilBon,  22  iMe.  110;  Shipman  v. 
Th«  State,  44  Wis.  4,iS. 

•  Day  t>.  Lock  wood,  '24  Conn.  186;  Crosby 
V.  Miison,  ;!'i '  oHii.  432. 

*  1  Dall.  21).).  And  tioo  Temple  v.  Belding, 
1  Root,  314. 


'>  Koons  V.  Miller,  3  Watts  &  S.  271 ;  Watt 
V.  Hatch,  '25  Pa.  St.  411 ;  Adams  v.  Palmer,  30 
Pa.  St.  346.  And  see  Shcwel  v.  Givan,  2 
Blackf.  312. 

•  Eddowes  i'.  Hopkins,  Doug.  361 ;  Knox  v. 
Jones,  2  Dall.  193;  Koons  v.  Miller,  3  Wulls 
&  S.  271;  Uensselaer  (ilass  Factory  v.  ricid, 
5  Cov,-.  611;  Esterly  v.  Colo,  3  \.  Y.  r.Oi; 
Hi^pliam  V.  Pollock,  1  McLean,  411;  Liotard 
V.  Graves,  3  Caincs,  216;  Sclleck  v.  Freii.'li,  I 
Conn.  32;  Watt  v.  Ilalch,  25  Pa.  St.  411 ;  Golf 
ti.  Inhabitants,  2  Cash.  475,  Newell  r.  Gris- 
wold,  6  .Johns.  44;  Sammis  v.  Clark,  1:1  111. 
.514;  llittr.  Allen,  13  111.  5i)2,  Veiths  f.  llaggo, 
S  Iowa,  163:  Itighton  t'.  Blake,  1  Brev.  I5'.l; 
Knight  V.  Mitchell,  3  Brev.  606;  S'earson  r. 
Grice,  8  Fla.  214 ;  Lamb  v.  Klaus.  30  Wis.  94  ; 
Morri.s  v.  Allen,  14  N.  J.  Eq.  44;  Goodman  i: 
Clarke,  65  Me.  280;  Kermott  r.  Aver,  1 1  Mich. 
LSI  ;  (Jomstock  v.  Smith, 20  Micli.:;3s;  B.'irclay 
I'.  Kennedy,  3  \\  ash.  C.  Ct.  350.  And  sue 
ante,  §  52. 

"  Raymond  t".  Isham,  8  Vt.  263. 

"  McAllister  v.  Ucub,  4  Wend.  483. 


m 


I       :t 


Hi    .■ 


HIS 


IN    DIKKKRKNT    RBLATION8    AND    OCCUPATIONS. 


Negligence. 


as  a  general  principle,  running  accounts  do  not  dniw  interest,  yet  if  a  mere':'!!! 
has  been  in  the  general  practice  of  charging  interest  after  a  limited  pciid,!  „f 
credit,  those  who  deal  with  him  with  a  knowledge  of  that  fact  are  h:,nui\  to  |i:iy 
interest  from  tlie  expiration  of  such  period;  and  tlieir  liability  is  tlie  sainr  if  i;-  v 
have  been  in  the  habit  of  settling  their  accounts  with  him,  in  which  siieli  iiii  nst 
has  been  charged  and  allowed.'"  In  anotlier,  which  was  a  suit  on  a  bonk- 
account,  it  was  said:  "Evidence  may  be  introduced  to  show  that  I)y  tlie  ■i.rr  >- 
mcnt  or  understanding  of  the  parties  interest  may  be  cliuriiid.  Proof  of  ciiNtoin 
is  also  allowed.  As  thero  is  no  evidence  on  the  point,  it  is  not  a  ease;  im 
interest."  * 

Likewise,  while  on  such  charges  as  a  forwarding  merchant's  ser\  icci  for 
lrci.L;ht,  wliarfii;j;e,  and  storage,  interest  is  not  by  law  allowed,'  usuirc  inn 
allow  it.*  And  where  a  banl<er  and  his  customer  have  carried  on  their  hii^iii -<s. 
as  to  interest,  for  a  number  of  years  in  a  particular  way,  it  will  b(;  assumed  tli;ii 
there  is  an  agreement  to  that  effect,  and  the  principle  involved  will  be  In  l(i  liim!- 
ing  in  any  subsequent  disagreement  between  them.*  A  commission  meic;i:i;it  is 
liable  for  interest  on  a  balance  in  liis  hands  in  favor  of  his  principal,  in  tl:( 
absence  of  proof  of  a  usage  of  trade  to  the  contrary;"  and  the  custom  of  im  ; 
chants  as  to  when  open  accounts  become  due  is  evidence  of  the  time  wIkii  i.ii 
Statute  of  Limitations  bi^nins  to  run.^  In  New  Jersey,  l)y  usage,  interest  is  col' 
Iccted  on  judgments  by  an  indorsement  on  the  execution." 

X.   MiSCKLI-ANEOUa. 

§  168.  The  Question  of  Negrlisence  as  affected  by  Custom. — Judge  Stouv,' 
in  stating  the  degrees  of  negligence  and  the  measun;  of  diligence  in  diffoivi.t 
relations,  say.s:  «»  Indeed,  wliat  is  common  or  ordinary  diligence  is  more  a  iniitur 
of  fact  than  of  law.  And  in  every  community  It  must  l)e  judged  of  by  tlie  actual 
state  of  society,  the  liabits  of  business,  tlie  general  usages  of  life,  and  the  dan- 
gers as  well  as  the  institutions  peculiar  to  the  age ;  so  that,  although  it  may 
not  be  possible  to  lay  down  any  very  exact  rule  applicable  to  all  times  and  all 
circumstances,  yet  tliat  may  be  said  to  be  common  or  ordinary  diligence,  In  the 
sense  of  the  law,  which  men  of  common  prudence  generally  exercise  about  tliuir 
own  affairs  in  the  age  and  country  in  which  they  live.  It  will  thence  follow  ihat 
in  different  times  and  in  different  countries  tlie  standard  is  necessarily  varialile 
with  respect  to  the  facts,  althougli  it  may  be  uniform  witli  respect  to  the  prin- 
ciple; so  that  it  may  happen  that  the  same  acts  which  in  one  country  or  in  one 
age  may  be  deemed  negligent  acts,  may  at  anotlier  time  or  in  anotlier  conntry 
be  justly  deemed  an  exercise  of  ordi:.ary  diligence.  It  is  important  to  attend  to 
this  consideration,  not  merely  to  deduce  tlie  implied  obligations  of  a  bailee  in  a 
given  case,  but  also  to  possess  ourselves  of  tlie  true  measure  by  which  to  flx  tiic 
application  of  the  general  rule.  Thus,  in  times  of  primitive  or  pastoral  sim- 
plicity, when  it  is  customary  to  leave  flocks  to  roam  at  large  by  night,  it  would 


I.  .•■ 


h'v 


1  Reab  V.  McAllister,  8  Wund.  109. 
«  Crosby  v.  Mivson,  ;»2  Conn.  483. 
»  Trotter  v.  Giant,  2  Wend.  '213. 
*  Meech  v.  Smith.  7  Wend.  31.5. 
''  Moses  V.  salt,  32  Itcav.  201);  Clancartyv 
l.iitoiiche,  1  Uoll&U.  420. 


«  Price  V.  MoConnioo,  44  Ala.  B27. 
'  Ilendrickii    r.   Kobinson,   .W   Miss.  (194; 
Bfflnger  v.  Henderson,  3)'i  .Mi--*.  II!). 

8  Eric  It.  Co.  ti.  Ackerson,  33  N.  J.  L.  S4. 
•  Story  oil  Bail.,  }  11. 


M 


MAl.KiKNCli. 


31I> 


How  Affcrtcd  l)v  riistom. 


not  be  a  want  of  ordinary  diliniiico  to  allow  a  neighbor's  Hock,  wliuli  is  depos- 
ited Willi  us,  to  roam  in  the  same  maiuier.  But  if  the  general  custom  were  to 
pen  such  flocks  at  night  in  a  fold,  it  would  doubtless  be  a  want  of  such  diligence 
not,  to  do  the  same  with  ♦hem.  In  many  parts  of  America,  especially  in  the 
interior,  where  there  are,  comparatively  speaking,  few  temptations  to  theft,  it  is 
usual  to  leave  barns,  in  which  horses  and  otlier  cattle  are  kept,  without  being 
under  lock  by  night.  But  in  our  cities,  where  the  danger  is  much  greater  and 
the  temptation  more  pressing,  it  would  be  deemed  a  great  want  of  caution  to  act 
ill  the  same  manner.  If  a  man  were,  in  many  country  towns,  to  leave  his  friend's 
horse  in  his  Held,  or  in  his  open  barn  all  night,  and  the  horse  were  stolen,  it 
would  not  be  imagined  that  any  responsibility  was  incurred.  But  if  in  a  large 
city  the  same  want  of  precaution  were  shown,  it  would  be  deemed  in  many  cases 
a  gross  neglect.  If  robbers  were  known  to  frequent  a  particular  district  of 
country,  much  more  precaution  would  be  there  reriuired  than  in  districts  where 
robberies  were  of  very  rare  occurrence.  What,  then,  is  usually  done  by  prudent 
raen  in  a  particular  country  in  res.pect  to  things  of  a  like  nature,  whether  it  be 
more  or  less  in  point  of  diligence  than  what  is  exacted  in  another  country, 
becomes  in  fact  the  general  measure  of  diligence.  And  the  customs  of  trade  and 
the  (!ourse  of  l)usincss  have  also  an  important  influence.  If,  in  the  course  of  a 
particular  trade,  particular  goods  —  as,  for  instance,  coals  —  are  usually  left  on  a 
wliiirf  without  any  guard  or  protection  during  the  night,  and  they  are  stolen,  the 
whartinger  or  other  person  having  the  custody  might  not  be  responsible  for  the 
loss,  although  for  a  like  loss  of  other  goods  not  falling  under  a  like  predica- 
ment he  might  be  responsible.  If  a  chaise  Avere  left  during  the  night  under  an 
open  shed,  and  were  stolen,  the  bailee  might  not  be  liable  for  the  loss  if  such 
was  the  usual  practice  of  the  town  or  place,  and  yet  he  might  be  liable  if  greater 
precautions  were  there  usually  takcH.  In  short,  diligence  is  usually  proportioned 
to  the  degree  of  danger  of  loss;  and  that  danger  is,  in  different  states  of  society, 
lompounded  of  very  different  elements.  Men  intrusted  with  money  might  at 
some  times  and  in  some  places  be  required  to  go  armed,  when  at  other  times 
and  in  other  places  such  a  precaution  would  be  deemed  wholly  unnecessary." 
In  Vaughan  v.  Mrnlove,^  Vauchian,  J.,  said,  speaking  of  the  evidence  of  negli- 
gence: "The  conduct  of  a  prudent  man  has  always  been  the  criterion  for  the 
jury  in  such  cases;  but  it  is  by  no  means  confined  to  them.  In  insurance  cases, 
where  a  captain  has  sold  his  vessel  after  damage  too  extensive  for  repairs,  the 
qnestion  has  always  been  whether  he  has  pursued  the  course  which  a  prudent 
man  would  have  :)iirsued  under  the  same  circumstances."  "They  must  take," 
said  Rkst,  J.,  in  an  old  case,  speaking  of  bailees  for  hire,  "  the  same  care  of 
property  intrusted  to  them  that  a  prudent  man  would  take  of  his  own  prop- 
erty."" 


■■i" 


i  !(?!).  Same  —  As  affecting  the  Duties  of  Common  Carriers.  —  In  Cass  \. 
Boston  nnd  Lmoell  Railroad  Cnmpan*/,''  the  plaintiff  sued  to  recover  the  value  oi 
a  tub  of  sugar  which  had  been  consigned  to  him,  and  which,  a  few  days  after  he 
had  received  notice  of  its  arrival  at  the  defendant's  depot  at  Boston,  he  paid  the 


l^f 


'  SRinR.  N.C.  468. 

'  BatAon  r.  Uonovan,  4  Bam.  A  Aid.  SO. 
Ani  see  Lodwicke  t'.  Ohio  Ins.  Co.,  5  Ohio, 


436;   Lawrence   v.  McUregor,  Wright,  193; 
Cook  V.  Ohainplain  Transp.  Co.,  1  Denio,  92. 
<  14  Allen,  448. 


■  I     'I 


320 


IN     Olfc't'KliK.NT    UKLATIONS    AND    OCCUI'ATION.S. 


NculiirtMice. 


ail 


U .; 


freight  upon  and  received  an  order  for  its  delivery.  Upon  calliui;  for  the  sti'ar 
at  the  freight  depot,  he  was  informed,  after  search  for  it,  that  it  could  not  he 
found,  and  had  probably  been  stolen.  On  the  trial,  it  appeared  that  at  the  linip 
when  the  su2;ar  was  discovered  to  be  missinj;  it  had  been  about  eight  days  In  tlie 
depot,  where  a  number  of  men  were  employed  in  attending  to  the  unloading  and 
delivery  of  freight,  and  the  defendants  offered  to  prove  that  the  same  cure  was 
exercised  in  relation  to  this  property  which  was  usually  exercised  in  Boston  by 
otlier  railroad  corporations  in  the  case  of  similar  property.  This  oviUenct;  the 
trial  judge  excluded,  and  the  jury  returned  a  verdict  for  the  plaintiff.  On  appeal 
to  the  Supreme  Judicial  Court  of  Massachusetts,  the  judgment  was  reversed,  the 
court  saying:  •♦  If  the  defendants  exercised  due  and  ordinary  care  in  the  custody 
of  the  property,  they  cannot  be  charged  for  its  loss.  What  constituted  siicii 
care  was  a  question  of  fact,  to  be  judged  of  with  reference  to  ail  the  circuiu- 
stances,  and  especially  with  reference  to  the  degree  of  care  wjiicli  oilier  persons 
engaged  in  similar  business  in  the  vicinity  were  in  the  habit  of  bestowing  on 
property  similarly  situated.  The  standard  of  ordinary  care  varies,  necessarily,  in 
different  localities.  One  degree  of  diligence  would  bi;  required  for  the  city  .ind 
a  less  or  greater  for  the  country,  depending  on  a  great  variety  of  circumstances. 
Tlie  defendants  offered  to  prove  tliat  there  was  exercised  by  them  in  relation  to 
this  propirty  that  care  wliicli  other  railroad  corporations  in  Boston  usu  lly 
exercised  in  relation  to  such  property.  The  court  excluded  this  evidence,  au'  on 
this  ground  the  exceptions  are  well  taken."  Lichtenhdn  v.  Boston  and  Pro'-idi'iici' 
Railroad  Company^  was  a  suit  against  the  defendants  as  warehousemen,  for 
the  non-delivery  of  property  in  their  charge,  the  defence  being  that  it  had  ixjcn 
fraudulently  taken  from  them  without  any  negligence  on  their  part.  On  ihc 
trial,  it  was  shown  that  when  merchandise  was  delivered  from  the  depot,  the 
name  of  the  person  to  whom  it  was  delivered  was  inserted,  in  |)('ncil,  on  the  mar- 
gin of  a  book  kept  by  the  defendants,  and  that  this  was  the  only  evidence  takon 
by  the  defendants  of  the  delivery.  The  plaintiff  contended  that  this  was  a 
careless  method  of  doing  business,  and  offered  evidence  to  show  that  all  the 
other  railroad  companies  in  that  city  took  written  receipts  from  parlies  receiving 
property  from  them.  This  evidence  was  excluded,  and  the  defendants  had  a 
verdict,  vvhich  was  affirmed  on  appeal.  The  Supreme  Court  refused  to  consider 
the  ruling  as  material,  for  the  reason  that  the  jury  liad  found  that  the  i)roperty 
of  the  plaintiff  liad  been  abstracted  from  the  defi'ulants'  custody,  and  not  that 
it  had  been  delivered  to  the  wrong  person.  Had  the  latter  been  the  company's 
defence,  the  case  would  have  been  different.  "As  to  the  ruling  of  the  pr(-.i(,ri;; 
judge  excluding  the  testimony  offered  by  the  plaintiff  tending  to  show  tha' 
other  railroad  companies  require  written  receipts  from  those  to  whom  goods  .ut 
delivered  from  the  warehouse  of  the  company,  and  that  such  mode  was  a  ixtte • 
one  than  that  of  the  defendants,  whidi  was  writing  the  name,  in  pencil,  of  the 
party  who  received  an  article,  in  the  margin  of  the  book,  against  the  article 
delivered,  we  are  of  opinion  that  it  furnished  no  ground  for  a  new  trial,  ft  the 
case  had  been  one  of  actual  delivery  to  a  third  person  by  an  agent  of  the  defend- 
ants, and  the  ({uestionhad  beenwhetlier  the  mode  of  defendants  furnished  equal 
security  for  ascertaining  to  whom  the  article  had  been  delivered,  the  question 
whether  a  general  usage  of  railroads  in  this  matter  might  not  have  been  adiuis- 

I  11  Cush.  70. 


NK<il.ICiKNCK. 


A2i 


Coiiiiiioii  Curriers. 


sibU'  to  show  iioiiligence,  mislit  have  required  further  consideration.     But  lo  the 
present  case  the  proposed  evidence  was  wholly  irrelevant.     There  is  nothing  in 
the  case  to  show  that  any  delivery  of  the  i)ropcrty  took  place  as  between  the 
.Icfendants  and  any  individual.     If  their  mode  had  been  like  that  of  other  com- 
piinies,  yet  no  receipt  would  have  been   taken   by  them,  because,  upon  their 
liypothesis,  there  iiad  been  no  delivery.     The  position  of  the  defendants,  on  the 
contrary,  is  thai   the  goods  were  fraudulently  abstracted  from  their  custody." 
In  Lovpland  v.  Hiirkr,^  the  plaintiffs  employed  the  defendant  to  tniiisport  a  hojrs- 
lictul  of  niola>sis  from  Boston  to  their  store  in  Somcrville,  and  in  delivering  the 
lio'.;sh(';id  at  the  store,  while  it  was  beini;  rolled  on  skids  from  the  waijoii  to  tlie 
sidewalk,  one  of  the  skids  broke,  and  tlie  contents  of  the  ho:;shead   were  lost. 
The  skids  wen-  furnished  by  the  plaintiffs  at  the  defendant's  request,  and  the 
l)n'akin!;  w:i^  caused  by  a  piece  haviui;  been  sawed  from  the  under  part  of  it. 
On  the  trial,  !hc  defendant  offered  to  prove  that  it  was  the  universal  and  well- 
known  custom  in  Somerville  for  grocers  to  keep  and  furnish  skids  whereon  to 
remove  heavy  articles  from  common  carriers'  wau;ons  to  their  stores,  and  for 
carriers  not  to  furnish  skids,  and  tliat  it  was  the  plaintiffs'  duty  in  this  ease  to 
furnish  them,     lie  likt'wise  contended  that  the  skids  appeared  to  him  to  be  suit- 
able, and  that  tlic  ilefcct  was  unknown  to  him,  and  requested  an  instruction  that 
if  the  jury  slinuM   lind   that  it  was  the  duty  of  the  plaintiffs  to  furnisli  proper 
skids  upon  which  to  receive  the  hogshead,  and  that  those  so  furnished  appeared 
tube  suitable,  he  was  not  liat)le.     This  instruction   was  refused,  and  the  jii"y 
were  told  that   it  wxs  the  duty  of  the  carrier  to  deliver  the  proi)erty  on  the 
premises  of  the  I'laintiffs,  using  proper  means  and  instruments;  that  the  mere 
fact  that  till-  ii'<age  was  that  the  grocers  should  furnish  the  skills  did  not  alter 
ihoduty  of  the  (letVmlant  to  make  a  proper  delivery;  and  that  lie  was  bound  to 
lis '  proper  skids,  even  though  they  were  furnished  by  the  plaintiffs.    "  The  plain- 
tiffs were  not  warrantors  that  the  skids  were  siifHcient  to  carry  the  hogshead  to 
the  sidewalk  on  Uio  plaintiffs'  premises.     If  there  was  a  latent  defect  in  the 
slxids,  known  to  the  i)laintiffs  and  not  known  to  the  defendant,  and  not  ()l)serv- 
able  by  ordin:iry  skilful  observation  before  using,  the  defendant  would  not  be 
liable.    The  <|uestion  as  to  usage,  though  of  some  importance,  is  not  decisive 
of  tiie  case:  but  t!ic  previous  considerations  must  also  be  regarded.     The  mere 
fact  that  the  skids  were  furnished  in  compliance  with  usage  by  the  plaintiffs 
(Iocs  not  alter  tiie  period  wlien  tiie  delivery  is  completed.     The  ptMiod  of  eom- 
plel!-(l  delivery  l)y  tiie  carrier  is  the  same,  whether  the  skids  are  to  be  furnished 
l).v  the  plaintiff-*  m  by  the  defendant."    The  Supreme  Court  held  this  charge  to 
be  wroiiiT.     "  The   jury  should  have  been  instructed,"  said  A.mi'.s,  J.,  "  tliat  If 
they  were  satisfied  of  the  existence  of  a  long-continued,  established,  and  noto- 
rious usage  for  grocers  in  that  locality  to  furnisli  the  planks  or  wooden  supports 
fur  unloading  at  their  shops  heavy  articles  from  carriers'  wagons,  and  if  the 
lamiige  in  this  instance  was  occasioned  by  defects  in  the  appliances  furnished 
for  that  purpose  by  the  plaintiffs,  especially  if  those  defects  were  not  so  mani- 
fest that  the  defendant  saw,  or  with  reasonable  attention  would  have  seen  them, 
the  acticm  could  not  be  maintained.     A  usage  to  furnish  the  skids  must  mean 
suitable  and  proper  skids,  capable,  with  reasonable  use,  of  sustaining  the  weight 
of  the  articles  which  wore  to  rest  uMon  them."     In  another  case,  a  railroad  cona- 


120  Mass.  140. 
21 


h\'' 


IN    UIKFKICKNT    KKLAi'10N.S    ASU    OCCLl'A  1  iuN: 


NoKli^LMifi'. 


'^fiim  iUli 


I  > 


■:) 


pany  was  sued  for  a  personal  injury  received  by  tlie  plaintiff  throu^ti  the  can 
lessness  of  one  of  its  servants  in  wheelini;  a  crate  of  crockery  aluiii;  tlv 
platform  of  its  freight-house.  The  plaintiff  had  f?one  to  the  freij^lit-liousc  t<. 
receive  some  goods  of  his  employer,  and  while  attending  to  this  l)iisiness  wa- 
Injured  by  the  crate  of  crockery,  which  was  being  moved  by  one  Monnciili.m.  a 
servant  of  the  defendants,  to  another  wagon.  The  crate  had  been  in  the  frciijtit- 
houso  for  a  day  preceding,  awaiting  the  owner,  and  the  defendants  cdiiUiKloii 
that  their  duty  was  then  at  an  end,  and  tliat  they  were  not  liable  for  tlu;  sulix!- 
quent  unauthorized  act  of  Monneghan  in  moving  it  to  the  wagon,  nor  tor  any 
damage  caused  thereby.  On  the  trial,  the  plaintiff  Introduced  evidence  to  show 
that  it  was  the  ordinary  custom  of  Monneghan  to  move  heavy  articles  from 
inside  the  freight-house  to  the  platform  when  they  were  called  for,  and  dilivci 
them  there:  and  tlie  judge  instructed  the  jury  that  "if  it  was  Monm  u'liair.s 
ordinary  custom,  when  heavy  freight  like  this  crate  of  crockery  was  callcl  for 
by  the  consignees  after  it  had  been  deposited  in  the  freight-house,  to  remove  it 
to  the  platform  outside,  then  this  would  become  the  service  of  ihe  defoinl.ints, 
even  if  their  duty  had  ceased  as  to  the  delivery  of  the  goods."  In  the  Sii|ireiiii: 
Court  this  instruction  was  held  incorrect.  "  It  is  difficult  to  see,"  snjil  Smith. 
J.,  "how,  after  the  defendants'  duty  had  ceased  as  to  the  delivery  of  frei^'lit,  ;my 
custom  or  practice  of  Monneghan's  in  assisting  consignees  in  removing  or 
loading  their  goods  can  affect  the  defendants.  The  defendants  are  only  respon- 
sible for  their  servant's  acts  when  acting  within  the  line  of  his  duty,  and  wiihin 
the  line  of  their  duty  to  their  consignees.  When  that  duty  has  ended,  they  an 
no  more  responsible  for  his  acts  and  doings  than  for  the  acts  and  doinus  of 
any  other  person." '  Where  goods  in  the  hands  of  a  carrier  were  injured 
while  he  was  descending  a  river  with  two  flat-boats  lashed  togetlier,  the  fact 
that  this  was  a  customary  niodj  of  navigating  the  river  was  held  relevant  on  tht 
question  of  negligence.*  And  a  custom  of  tlie  officers  of  a  boat  on  the  river  to 
notify  passengers  of  their  arrival  at  their  places  of  destination  will  nndir  tht 
carrier  liable  for  taking  a  passenger  beyond  his  destination,  who  had  tailed  to 
land  at  the  proper  place  through  not  receiving  the  customary  notice.'  Where  a 
railroad  company  was  sued  for  an  injury  to  a  passenger,  received  while  aliirhtinj: 
from  the  train  at  the  depot,  and  the  negligence  charged  was  the  failure  of  the 
train  to  stop  a  sufticicnt  length  of  time  to  enable  the  plaintiff  to  alight  in  safety, 
evidence  of  the  usual  and  customary  period  of  the  train's  stopping  at  tlie  placr 
was  admitted.  "We  think  it  was  proper,"  said  the  Supreme  Court,  "for  tin 
purpose  of  showing  what  the  defendants  had  considered  a  reasonable  time  to  be 
allowed  the  passengers  to  leave  at  that  station;  and  if  the  time  allowed  for  that 
purpose  on  this  occasion  was  shorter  than  the  usual  and  customary  time,  it 
would  tend  somewhat  to  show  that  a  reasonable  time  was  not  allowed." '  lu  an 
action  for  an  injury  to  a  passenger,  one  of  the  questions  being  whether  a  passen- 
ger is  bound  to  wait  in  the  depot  until  the  arrival  of  the  train,  or  may  go  onto 
and  stand  upon  the  platform  while  it  approaches,  the  usage  of  other  passenger- 
there  is  relevant.* 


>  Jewell  V.  Railway  Co.,  55  N.  II.  84. 

»  Johniion  v,  Ughlscy,  H4  Ala.  169. 

■  Carson  v.  Leutbere,  11  Cent.  L.  J.  167. 


I  uiler  V.  Naugatuck  li.  (Jo., '21  ronti.  557 
Caswell  V.  Boslou,  civ.,  K.  Co.,  »&  Mux. 


IM. 


XKOLIGENCK. 


32;; 


iSiiliii<'iils. 


liill 


Mllf! 


\mm 


§170.  Same  —  As   affectlngr    the   Question   of    Diligence   in    other    Baii- 
mentB. —  In  .yfaxwell  v.  Easitn,^  the  action  was  to  recover  the  value  Oa  a  quantity 
of  cotton  delivered  by  the  plaintiff  to  the  defendant,  the  owner  of  a  cotton-pcin, 
and  which  was  destroyed  by  Are  thronj^h,  as  was  alleged  In  the  declaration,  tlu 
negligence  of  the  defendant.    The  defendant  denied  that  he  liad  been  guilty  of 
negligence,  and  the  evidence  showed  that  the  tire  was  caused  by  the  falling  ot 
an  open  lamp  among  tlie  cotton  from  the  hands  of  ;he  defendant's  son,  •vhilc 
proci'f'ding,  by  his  order,  to  hang  up  in  the  gin-house  a  pair  of  steelyards.     '>■. 
the  trial,  one  of  the  plaintiff's  witnesses,  an  owner  of  a  giu-hou^e  in  the  same 
county,  was  asked  the  following  <iuestions:  *'  What  is  tlie  general  custom  of  gin- 
hoklers  in  regard  to  carrying  light  about  their  gin-houses  when  they  contain 
cotton?    What  is  your  custom  in  this  respect?     Is  it  customary  among  gin- 
holders  io  carry,  or  permit  to  be  carried,  in  their  giu-houses,  when  they  contain 
cotton,  nil  open  lamp  with  oil,  to  afford  light  ?  "     These  questions  were  excluded 
by  the  trial  judge,  and  this,  on  appeal,  the  Supreme  Court  held   to  be  error. 
"The  question  of  fact  for  the  ditfruiination  of  the  jury,"  saiil  Sakkoi.d,  J., 
"was  whether  the  defend:!'  t  used  ordinary  care,  or  that  degree  of  caution  which 
is  due  from  a  man  of  common  prudence  in  the  same  situation  or  in  like  employ- 
ment.   The  necessary  and  usual  caution  for  the  security  of  gin-houses,  and  how 
far  it  is  deemed  prudent  to  risk  fire  in  or  near  them,  is  not  presumed  to  be 
equally  known  to  all  i)ersons.     If  it  were  so  to  be  regarded,  the  evidence  wa* 
inadnii>sible.    But  it  is  presumed  prudent  gin-liolders  have  something  like  a  uni- 
form practice  in  this  re«pt.'ct.     If  so,  every  one  who  sends  his  cotton  to  a  gin  i> 
entitled  to  expect  the  same  care  and  prudence  for  tlie  security  of  his  property. 
Then,  to  enable  the  jury  to  decide  whether  this  defendant  used  that  degree  of 
care  whicli  is  usual  with  a  majority  of  prudent  men  in  tlie  same  busincjss  or 
trade,  evidence  of  the  custom   of  such  persons   generally   was   relevant  and 
admissibh;,  tmd  should  iiave  been  permitted  to  go  to  the  jury.     The  acts  of  the 
defendant's  son,  in  his  ijnmediate  employment  and  under  Ins  direction,  can  only 
be  regarded  as  the  act  of  the  defendant  himself.    The  evidence  respecting  the 
individual  custom  of  the  witness  as  a  gin-holder,  uuless  it  corresponded  with 
the  general  usage,  was  immaterial;  but  the  usual  custom  of  prudent  men  in 
that  respect,  ii'.ciuding  that  of  the  witness,  was  legal  testimony."     Bruioii  v. 
Hitchcock  •  somewhat  resembles  this  case.    The  plaintiff  delivered  to  the  defend- 
»nt  a  quantity  of  palm-leaf  to  be  worked  into  hats,  or  returned  when  called  for; 
but  when  the  plaintiff  demanded  it,  it  was  found  to  be  spoiled  by  heat  and 
mould,  occasioned  from  the  palm-leaf  not  having  been  taken  out  of  the  sacks  in 
which  it  was  delivered,  and  exposed  to  the  air.    On  the  trial  of  an  action  for  the 
loss,  the  defendant's  evidence  was  to  the  effect  that  he  kept  his  own  palm-leaf 
stored  in  sacks,  and  no  injury  had  resulted  therefrom,  and  that  the  plaintiff's 
palm-leaves  were  damp  when  he  received  them.     It  was  held  proper  for  the 
plaintiff  to  show  that  it  was  usual  and  customary  among  d(!alers  to  put  leaf  in 
sacks  in  a  damp  state  for  market  that  it  was  usually  bought  and  sold  in  that 
way,  and  that  it  was  the  custom  of  manufacturers  to  take  the  leaf  from  the 
sacks  and  expose  it  to  the  air.     So,  a  miller  <!mployed  to  grind  grain  must  ust; 
the  diligence  of  millers  of  neighboring  mills.'^    Where  the  question  is  as  to  the 


'  1  stew.  (514.  «  28  Vt.  452. 

'  McKibben  v.  BakerB,  1  IJ.  Mon.  122.    A» 
to  the  custom  of  storing,  as  atfeoting  the  lia- 


bility of  a  warehouseman  for  goods  atolcu 
from  his  warebouse,  see  ehenowith  «.  Diok- 
iDsoii,8  B.  Mon.  IMS. 


:•( 


*■■ 


i  i 


:;24 


DIFtKUKM'    UKLAIIO.NS    AND    OC(;Ul'A TIONiS. 


IILIriKIC, 


diligence  of  iin  as!;cnt  in  raakint;  a  sale,  evidence  of  ti^aii'-  is  coinpelcnt;'  ami, 
on  a  similar  principle,  where  an  a-^ent  was  sued  by  his  principal  for  the  smiii  of 
920,000  bclonjiing  to  the  latttT  which  lie  had  collected,  and  his  defence  was 
that  it  lijul  been  stolen  from  liiin,  and  it  appeared  tliat  the  money  wa>  at  1  In- 
time  of  tlu«  loss  kept  in  an  in>ii  safe  in  a  room  usually  occupied  by  two  perxms, 
but  then  Icit  unjiuarded  an«l  not  very  secure,  it  was  held  competent  fur  liiiri  to 
show  tli.it  ciii.'.odians  of  nionev  do  not  usually  look  to  doors  or  win  lows  for 
protection,  but  l>o  their  vaults  and  safes.'  Tlio  presentmont  of  a  check  may  In; 
whown  l)y  ii>a;;e  to  be  in  time,  which  without  such  proof  would  be  deemed  to  In' 
ne<i;li.neiit!y  'lelayed/'  And  wliere  the  question  was  whether  a  yuest  at  a  liotcl 
liad  been  unilly  of  nc^;linence  in  leavinj;  tlie  key  in  the  (ioor  of  his  room,  in 
which  was  a  larjie  sum  of  money,  evidence  of  the  nsaj^e  of  i;ne>ts  at  the  lioiel 
of  leavinii  keys  in  the  doors  of  their  rooms  was  held  to  be  relevant.' 

In  like  m.iuner,  it  is  universally  held  that  the  drivers  of  hors(^s  and  carri.ise-i 
on  the  liiijhways,"'  and  the  masters  or  pilots  of  ships  and  steaiiiUoiits  011  the 
waters,"'  must  follow  the  customary  mode  of  passim;  each  other,  and  a  f.iiliirc 
to  comply  with  sucli  custom  will  tiuiount  to  negligence. 


§  171.  Same  —  As  affecting  the  Contributory  Neerlisrence  of  a  Servant.— 
Several  recently  reported  cas(!H  discuss  tlie  force  of  a  custonj  on  the  (jnesliDn  of 
the  contril)ntory  negligence  of  a  servant  in  an  action  against  the  master  for 
injuries  received  while  in  his  employ.  In  Jii'nj  v.  (.'hififii',  etc.,  E'iihra;i 
Company,^  the  plaintiff,  who  was  an  employee  of  the  (^  t'enilaut  coiiunuiv, 
engaged  as  a  trackman,  removing  snow  and  ice  from  tlie  track  in  tlie  .'epot 
yard,  was  injured  by  a  car  which,  detached  from  the  locomotive,  had  hi'eii 
shunted  along  the  track  on  which  he  was  working.  There  wa>  a  i»rali(;in;ui  on 
the  car,  wlio  testified  to  having  called  out  to  the;  plaintiff  as  the  c  ar  approached 
him,  but  the  latter  did  not  Iiear  lilm.  On  the  trial,  the  defemlniit  ttff'i-ed  evi- 
dence, which  was  allowed,  «)f  a  custom,  known  to  the  plaintiff,  that  in  swilcliinj; 
cars  in  the  depot  yard  it  was  not  tiie  duty  of  the  riilway  company  to  haven 
brakeman  or  other  person  upon  eacii  train  of  cars  in  motion,  or  upon  each  car 
which  was  lieiug  moved  soijaraloly,  ti)  give  warning  to  the  men  at  work  in  the 
yard  of  approacliing  danger,  but  tliat  a  car  might  be  sent  along  any  of  the 
tracks,  attached  to  or  disconii(!Oted  from  a  locomotive,  as  the  exigencies  of  tli« 
business  might  require,  without  any  one  upon  it,  and  in  such  case  the  ineii 
employed  in  the  yard  must  look  out  for  themselves.  That  Is  to  say,  that  it  was 
not,  per  sc,  negligence  of  the  company  or  its  employees  thus  to  move  a  car  in  its 


*;  1 


'  Biailfonl  r.  Drew,  5  Mete.  it^-'. 

•-'  VVriRliL  r.  Central  R.  Co.,  16  Ga.  S8. 

■  Turner  ('.  Ilaiikof  Fox  Luke, 4  Abb.  App. 
Dec.  4;!4;  '2i{  How.  I'r.  :599;  .Jobn.soii  r.  Uaiik 
of  Norlli  America,  .'»  Hobt.  i>'>i;  4.")  \.  V.  07; 
Smith  V.  Miller,  52  N.  V.  .545:  42  N.  V.  171; 
Kelly  I'.  Second  National  Hank,  .V2  I'.arb.  :i28. 

^  IJcrk-hirc  Woollen  ('o.  «.  I'roctor,  7 
Cash.  417.     He    Harbcr  0.  llrace,  ;U'onn.  it. 

•'  Lcame  v.  Uiity,  3  East,  5'J;5;  Tueley  v. 
Thomas,  8  Car.  A  P.  104;  Bolton  v.  Caldcr,  1 
Walls,  :!(!n. 


"■Morrison  v.  (Jeiieitil  Steam  N;iv.  Co.,;! 
Excli.  7;!3;  Oener.1l  stejun  Xav.  Co.  i:  Morn- 
son,  13  C.  15.  .5S1  ;  ISarreM  r.  William.son,  * 
.McLean,  5'.),");  Myers  r.  rerr\,  I  La.  An.  37.i; 
The  City  of  Washin^'loii,  '.»•-•  U.  S.  .'Jl;  The 
ricimcnt,  2  Curt.  *;.!;  .Jone.s  v.  I'itcher, :! 
Stew.  &  P.  l:a ;  IJoyce  v.  The  Empress,  '. 
West.  L.  J.  174:  Drew  r.  The  Cliesaiieak.-,  i 
Douff. .!:!;  Ilaniing  c.  Tin;  Maverick,  .">  t- H- 
106;  Domingo  c.  Merelianl.->'  Ins.  Co.,  lit  U. 
An.  481 ;  .sampr^on  e.  ILind,  6  VVliart.  334. 

7  Sup.  Ct.  Wis.,  November,  1880. 


NKOLKJKNCE. 


;J25 


M;i^i:'r  and    Si-rvaiii. 


yard  imiiUoinliiil,  ami  the  peril  of  injury  from  a  cur  so  moving  was,  hv  iliu  cus- 
tom, one  of  the  perils  of  the  service,  the  risk  of  wliich  was  upon  the  servant. 
Tiie  Supreme  Court,  while  holding  the  custom  fully  proved  and  pnnxrly  ad- 
mitted, ruled  that  it  was  not  applicable  to  the  case  at  bar.  "Tlie  cu-.iom," 
siiid  Lyon,  J.,  '•  lias  little  significance  in  this  case,  for  the  reason  that  there  was 
abrukeman  on  the  car,  who  saw  the  plaintiff  at  work  on  the  track  upon  which 
the  car  was  movin'r,  a  sufHcient  time  before  the  injury  to  have  stopped  fhe  cjir 
before  it  reached  the  plaintiff,  or  to  have  warned  him  of  its  approacli.  The 
custom  does  not  rdic^ve  the  defendant  (jf  liabih^y  for  the  negliijenco  of  its  other 
employees.  It  did  not  relieve  thfi  braUeuian  of  ;'ie  duty  of  slopping  the  car  or 
warn  ins?  the  plaintiff  of  its  approach,  or  cast  up<  n  the  plaintiff  the  risk  of  his 
failure  to  do  so.  No  such  custom  was  referred  to  in  the  (piestion  proposed,  and 
none  was  proved.  On  the  contrary,  tiie  evidence  tends  to  show  that  tli<;  brakeman 
should  have  given  the  trackmen  some;  notice  or  warning  of  the  approacli  of  the 
car.  Un  grounds  of  public  policy,  a  cu.stoiu  which  would  permit  the  brakeman 
to  let  the  car  run  upon  the  trackmen,  when  he  knew  their  peril  and  could  easily 
avoid  it,  can  hardly  be  sustained  as  a  valid  custom."  In  Hughes  v.  Winona, 
etc.,  ItaUroad  Company,^  the  plaintiff  was  employed  as  a  night-brakeman  in  the 
defendant's  yard  where  trains  were  made  up.  Among  other  things,  it,  was  his 
duty  to  assist  In  making  up  trains  and  to  couple  cars.  For  the  latter  purpose  it 
was  necessary  for  him  to  go  between  cars  in  motion.  It  was  defendant's  cis- 
tom,  when  necessary,  to  have  the  lire-boxes  of  its  engines  cleaned  of  ashes 
at  any  place  upon  the  track  in  the  yard  where  an  engine  chanced  to  stand, 
when  the  engineer  or  flreinan  thought  best  to  take  them  out.  The  ashes  were 
usually  allowed  to  remain  where  they  dropped  upon  the  track,  from  one  to  four 
hours,  until  removed  or  scattered  by  men  employed  by  defendant  to  keep  the 
yard  in  order.  In  attempting  to  couple  two  cars,  one  of  which  was  in  motion, 
the  plaintiff  stepped  upon  a  heap  of  ashes  which  had  been  left  upon  the  track  in 
the  manner  above  mentioned,  and,  the  ashes  being  wet,  he  slipped  and  fell,  and 
the  moving  car  passed  over  his  leg,  crushing  it  so  that  it  had  to  be  amputated. 
On  the  trial,  the  jury  were  instructed  that  a  servant  continuing  in  a  .service 
with  full  knowledge  of  its  dangers  assumed  all  the  risks,  and  could  not  recover 
damages  for  an  injury,  even  though  the  mode  of  conducting  the  business  was 
careless ;  that  if  the  custom  of  the  defendant  in  disposing  of  the  iishes  was 
notorious,  so  that  the  plaintiff  would  be  deemed  to  have  knowledge  of  it,  he 
would  be  considered  in  law  to  have  voluntarily  assumed  all  the  risks  Incident 
to  that  way  of  managing  the  business,  and  could  not  recover  even  though  the 
custom  was  unsafe.  The  instructions  were  approved  on  appeal.  "  Their 
effect,  as  applicable  to  the  facts  of  this  case,"  said  the  Supremo  Court,  "  is  that 
if  an  employer's  unsafe  and  careless  custom  of  conducting  business  is  open  to 
observation,  so  that  it  can  be  reasonably  observed  by  the  senses,  and  the 
employee  has  ample  and  reasonable  means  of  using  his  senses  for  the  purpose 
of  observing  the  custom,  it  is  his  own  fault  and  negligence  if  ho  does  not 
observe  it,  and  lie  stands  upon  tlie  same  footing  as  if  he  had  actual  knowledge 
of  the  custom  referred  to;  so  that  the  risk  to  him  from  such  cnstoni  is  his  own, 
and  not  that  of  the  employer.  This  is  about  the  same  thing  as  saying  tliat  the 
employee  must  make  reasonable  use  of  his  senses  to  avoid  danger  and  injury  in 

Sup.  Ct.  Minn.,  September,  isso. 


iiiHj 


f 


826 


IN    DIFFEKKNT    KKLATIONS    AM)    0(  CIJIA  TIONH. 


Nesriim  U''c 


l-ii 


IVr 


!.,5 


the  course  of  his  oinplovmcnt ;  or,  In  other  words,  lluit  he  must  not  he  ncsH- 
ireiit.  •  ♦  •  Uiiilcr  tlie  instriictiotifl  of  tin?  i-oiirt,  the  jury,  in  rcndi  r!ii'4  a 
verdict  for  tho  dcferidtint,  must  be  tiiltcn  to  luive  found  that  the  di-fiMilaui  w;m 
not  nuilly  of  iit'trliirciico  in  depositing;  the  ashes  upon  «he  truck  and  siiffi  riti'^ 
thera  to  remain  tliere;  or  tliat  If  in  .sodoini;  it  was  jrniityof  neijliyjcncc,  ilna 
the  phiintiff  was,  or  oujrht  to  have  been,  eosni/ant  ot  defendant's  custom 
to  so  deposit  aslies  upon  liie  tract;  and  .suffer  them  to  remain  there  for  a  liini-, 
and  therefo'  took  the  risii  of  such  neglisjenee  upon  Idmself  l)y  com  inning  in 
defendant's  employ."  In  Flfinufujun  v.  Chicago,  etc.,  UnHrnnd  Comi)'hiii,''  the 
plaintiff's  injury  was  received  while  cllmbinE;  on  a  car  which  was  beiii'i  takfn 
to  tiie  coinpary's  repair-shops  for  in-pection  and  repair.  The  trial  jiid'.'e  tioii- 
snited  the  plaintiff,  for  tlie  reason  that  It  was  (|uite  apparent  from  his  (julies 
that  he  must  have  known  that  the  service  of  fakiufi  the  defective  cars  to  the 
repairlng-shops  was  more  ha/.anlons  than  the  usual  employment  of  a  brake  in  in 
on  the  road;  that  he  knew  it  was  the  custom  in  the  yard  to  take  all  cars  which 
had  been  used  for  brhv^inji  ore  to  Kscanabadown  to  the  repair-shops  for  inspec- 
tion ;  knew  it  frequently  happened  that  cars  which  were  out  of  repair  were  taken 
down  lliere  loi^elher  with  cars  which  did  not  need  repair,  and  tliat  a  knowl  'due 
of  these  facts  imposed  npon  him  more  care  than  would  have  been  incunihunt 
npon  him  under  other  circumstances.  Consequently  the  jutljie  held  that  wlicre 
the  plaintiff  soufjht  to  climb  upon  cars  which  he  was  thus  enirajied  in  liandlin!;, 
and  which  were  liable  to  be  out  of  repair,  he  was  bound  to  realize  that  fact,  and 
not  attempt  to  step  upon  the  jaw-brace  without  looking  to  see  where  in-  was 
placin<;  his  foot,  and  not  take  it  for  firantcd  that  the  brace  wa.s  then-  in  its 
place  becau.se  braces  were  usually  on  the  cars.  In  the  Supreme  Comi.  tln' 
force  of  this  argument  was  admitted  by  Ooi,k,  C.  J.,  who  delivered  the  (i;iiiiioii 
of  the  court,  but  the  judi;mcnt  was  atllrmed  on  the  ijround  that  there  \.,is  no 
sufTlcient  evidence  of  negll<?ence  on  the  part  of  the  company  to  take  tlie  case  to 
the  jury.  "When  this  case  was  here  on  a  former  appeal,"  said  the  court,  "it 
was  decided  that  no  negligence  on  the  part  of  the  company  conid  be  predi  ated 
upon  the  delay  in  removing  the  broken  car  from  the  end  of  the  spiir-tnuk, 
where  it  was  broken.  It  was  also  decided  that  the  law  did  not  impose  upon  the 
defendant  the  duty  of  repairiuii  the  car  upon  the  track  where  It  was  broken,  hut 
that  it  had  the  clear  rifiht  to  remove  it  to  Its  repair-yard,  where  such  work  wa.s 
usually  attended  to.  These  propositions  would  seem  to  be  so  well  founded  in  nvi- 
.son  and  common  sense  as  to  need  no  illustration  or  argument  to  support  tluin, 
for  a  moment's  reflection  must  satisfy  any  mind  that  it  would  be  iiractically 
impossll)le  for  a  railroad  company  to  repair  its  broken  cars  along  the  line  of  its 
road  where  they  might  liappen  to  be  wrecked.  Machinery,  appliances,  together 
witli  skilled  workmen,  are  generally  needed  to  make  repairs;  and  hence  there 
is  a  necessity  for  removing  broken  cars  to  shops  or  yards  where  these  can  be 
secured.  It  is  true,  the  testimony  shows  tliat  the  broken  brace  on  this  car 
might  have  been  repaired  on  the  track  where  it  stood;  but  it  appears  liio  com- 
pany had  a  rule  or  custom  of  sending  all  cars,  after  they  were  unloaded  of  ore, 
down  to  the  repair-shops  for  inspection.  This  would  seem  to  be  a  resonabU' 
way  of  doing  business,  and  the  custom  was  well  known  to  the  plaintiff."  So, 
in  an  action  by  a  brakcman  against  a  railroad  company  to  recover  damages  for 

1  Sup.  Ct.  Wis.,  November,  1S80. 


'llililWH'" 


NKiiMOBNCK. 


327 


Muster  and  Servant. 


:i  [iiTsonal  injury  vvliile  tn  its  einploj",  occcasioned  by  a  want,  of  b'  i^l  on  a 
sidt'-lrack  on  wtiicli  lie  went,  wiieru  the  company  offered  to  prove  tliaL  it  was 
.Mistomary  for  railroad  companies  to  iiave  in  use  unballustt-d  side-tracks,  whicti 
evidence  the  court  nfused,  this  was  held  to  be  error.'  So,  in  an  earlier  case,-' 
tlii-  plainliff's  iuU-siate  was  a  brakeman,  and  was  killed  while  uncoupling;  cars 
when  in  motion.  The  train-men,  of  whom  lie  was  one,  had  established  a  custom 
if  uncoupling;  the  train  wliile  in  motion,  at  this  particular  station  where  he  was 
%ill((l,  for  their  own  convenience.  The  court  held  that  no  recovery  could  be 
iiad  for  injuries  received  while  pcrformin<;  such  a  duty,  bi'cau.-»e  the  dt ceased 
must  be  reijiarded  as  havin<;  assumed  the  risk  incident  to  such  a  cu'^toniary, 
althoush  hazardous  eujployment.  "If,"  sal»l  Day,  C.  J.,  "  tiie  devased  had 
not  hini>^elf  contributed  to  the  establishing  of  the  custom,  and  remained  in  de- 
feiidant'j.  employ  with  knowledge  of  its  existence,  without  complaint  or  protest, 
ami  voluntarily  taken  upon  himself  the  particular  act  which  occasioned  his 
(Iciiili,  our  conclusion  would  be  different."  On  the  other  hand,  in  a  New  Vork 
case/  where  a  brakeman  was  killed  while  riding  on  the  locomotive,  and  the 
riilus  of  the  company  prohibited  brakemen  from  leaving  their  posts  while  the 
train  was  in  motion,  l)ut  the  evidence  showed  that  it  was  customary  on  the  road 
for  brakemen  to  ride  on  tlie  engine,  and  it  did  not  apjiear  that  the  deceased  was 
aware  of  the  company's  rules,  it  was  held  that  his  non-observance  of  tliem  was 
not  a  violation  of  duty;  that  it  could  not  be  assumed  that  his  duty  required  him 
to  be  at  all  times  at  the  brake,  or  at  any  particular  place  upon  the  train,  or  tliat 
to  be  upon  the  engine,  in  accordance  with  a  customary  practice,  was  a  violation 
tlierof;  and  that  the  evidence  was  suflicient  to  authorize  the  submission  to  the 
jury  of  the  question  w  liether  deceased  was  rightfully  upon  the  engine  when  the 
accident  happened,  and  to  sustain  a  finding  in  favor  of  the  plaintiff.  And  In  a 
Wisconsin  case,*  Ryax,  J.,  said :  •*  If  a  uniform  custom  of  railroad  companies  to 
use  structures  unnecessarily  dangerous  to  persons  employed  in  operating  trains 
lUid  l)een  proved,  we  should  hesitate  gravely  before  holding  tiiat  tlie  custom 
could  excuse  the  danger.  A  positive  ac(|uiescence,  scienter,  of  one  so  employed 
mislit  indeed  take  away  his  right  of  action  for  injury  received  by  such  a  struc- 
ture. But  there  is  public  as  well  as  private  interest.  The  operation  of  railroad 
trains  is  essentially  highly  dangerous,  and  it  is  a  duty  of  railroad  companies, 
too  plain  for  discussion,  to  use  all  reasonable  skill  to  mitigate,  tolerating 
nothing  to  aggravate  the  necessary  danger.  This  is  not  merely  a  private  duty 
to  individuals  concerned,  but  a  public  duty  to  the  State,  concerned  in  the  wel- 
fare of  its  citizens.  And  no  custom,  however  uniform  or  universal,  which 
unnecessarily  exposes  railroad  employees  to  loss  of  life  or  limb  would  seem  to 
suiisfy  a  duty  which  may  be  regarded  as  an  implied  condition  of  their  charters. 
Wc  use  the  word  '  unnecessarily  '  advisedly,  distinguishing  necessity  from  con- 
venience. A  convenience  may  be  so  great  as  to  be  regarded  as  a  practical 
necessity;  but  a  convenience  merely  to  lessen  a  little  the  labor  of  driving 
cattle  into  cars  can  hardly  rank  as  a  necessity,  or  excuse  such  proximity  of 
caltle-cimtes  to  the  track  as  to  jeopardize  life  and  limb  of  persons  operaiiiig 
trains." 


'  Pennsylvania  Co.  v.  Hankey,  10  Cent.  L. 
J.  337. 

Kroy  V.  Ctiicugti,  etc.,  It.  Uo.,  'i'i  lowu,  427. 


-  proiiK  '-.  IMilroad  Co.,  60  Barb.  30. 
■  I)or8cy  V.   I>billip.s,   etc.,  Construction 
Co.,  42  Wis.  5S8. 


•(.■ 


I   • 


ll 


1  i 


')26 


IN    I>1IFKRK\T    JiKI.ATIONS    AND    OCCUPATIONS. 


NcjilifJCIK-L'. 


§  17li.  Cuotoma  to  excuse  Negligence  rejected.  —  V  :iirt  ?<  si't  up  for  the  pur 
pose  of  cxfiisin*;  neglect  have,  however,  been  rejected  in  several  cases,  it,  has 
been  held  that  a  usage  will  not  excuse  a  carrier  for  the  neglect  of  any  duty  whicii 
he  owes  lo  a  passenger.  Thus,  in  an  action  against  a  ferryman  for  the  loss  of  u 
horse  and  wagon  while  crossing  a  river  on  his  ferry,  it  appeared  that  then-  \va> 
a  chain  at  the  forward  end  of  the  boat,  which,  if  it  had  been  fastened  up,  would 
have  prevented  the  accident.  The  defendant  offered,  but  was  not  permitted,  to 
show  that  it  was  the  custom  at  the  ferries  on  that  river  to  have  a  chain  at  the 
end  of  tlie  boat,  but  only  to  put  it  up  at  the  request  of  passengers.  On  appeal, 
the  court  held  that  the  evidence  of  custom  was  rightly  rejected.  «'Tlic  iisa<ji 
sougiit  to  be  proved  would  not  be  a  good  usage  if  it  prevailed;  it  would  niaki 
the  safety  of  the  passenger  depend  upon  his  own  conduct,  and  not  on  the  can 
and  vigilance  of  the  ferryman.  If  the  putting  up  of  the  chain  was  a  n'a>nnal)l( 
and  proper  precaution,  it  ought  to  be  put  up  by  tlie  ferryman  witliout  a  rt(iiiest ; 
if  was  not  so,  a  request  would  not  make  it  so." '  And  where,  in  an  action 
against  a  stiige-coach  proprietor  for  an  injury  to  a  passenger,  the  nculiituiici 
alleged  being  the  overloading  of  the  coach,  the  defendant  offered  to  prove  thai 
it  was  the  custom  on  that  route  to  carry  as  great  a  number  of  passenLjers  as 
were  on  that  particular  coach  at  the  time  of  the  accident,  the  evidence  was  ruled 
to  be  inadmissible.^  Similarly,  where  a  number  of  boxes  of  books  and  other 
property  were  stowed  by  a  warehouseman  on  a  wharf  in  close  proxiniilv  to  the 
water,  and  l)y  reason  of  a  sudden  storm  that  portion  of  the  wharf  was  sub- 
merged and  the  goods  were  injured,  it  was  lield  that  evidenee  that  it  wa< 
defendant's  custom  to  store  goods  on  tlie  wliarf  was  properly  excluded,  ;is  such 
a  usage  could  not  free  him  from  responsibility.'  In  an  action  against  a  tuvn  for 
an  injury  caused  by  a  defective  bridge,  the  question  as  to  how  the  |i  uiicular 
bridge  compared,  as  to  safety  and  repair,  with  other  bridges  of  like  character  on 
roads  of  like  amount  of  travel,  is  irrelevant;  *  and  in  an  action  against  a  radroad 
company  tor  damages  caused  by  flre  from  one  of  its  locomotives,  the  i-^^ue  beiiiL' 
whether  the  defendant  had  used  due  caution  and  diligence  in  prev>nting  the 
spread  of  the  fire,  evidence  that  it  was  not  the  usual  practice  among  railroads  in 
that  section  of  tlie  country  to  employ  watchmen  is  inadmissible.*  In  an  Al  ihania 
casi',  where  a  quantity  of  cotton  was  ignited  by  a  torch-light  on  the  boai  on  wiiich 
it  was  being  carried,  in  a  suit  for  its  loss  the  plaintiff  asked  an  instrneiion  thai 
if  the  torch-light  had  communicated  the  fire  to  the  cotton,  the  hitlc  i  'xinLr  ^o 
near  as  to  be  exposed  to  the  danger,  this  was  negligence,  and  rendriid  ihi' 
defendant  liable,  "although  the  jury  should  believe  that  it  was  usual  lor  -team- 
boats  to  carry  torch-lights,"  which  the  court  refused.  This  the  Supreme  Conn 
held  to  be  error,  saying:  "The  result  would  not  be  changed  by  tlie  existence  of  a 
custom  to  carry  torches  at  night.  A  custom  which  would  authorize  a  earrur  lo 
carry  a  torch  in  such  a  manner  as  to  endanger  the  cargo  would  be  violative  .ii 
law  and  good  faith,  and  could  not  receive  judicial  sanction.  If  a  lioat  cannot  he 
run  at  niglit  without  the  aid  of  torches,  parried  in  such  a  manner  as  lo  eiidanii'r 
tlie  cotton  or  freight,  to  stop  is  the  plain  duty  of  the  carrier.    Custom  cannot 


1  Miller  V.  Pendleton,  8  Gray,  547. 
-  Maury  v.  Talinadge,  2  McLean,  157, 
^  Merchants',  etc.Transp.  Uo.  v.  St?5ry,B0 
Md.6 


■t  miss  V.  lnhal)itants  of  Wilhraliaiii,  i 
Allen,  nr>4. 

f'  (jirand  Trunk  U.  Co.  v.  Itichardtou,  i»l 
U.  S.  454. 


nkoligi:n<  K. 


329 


Custom  ."111(1  r^airc 


relieve  from  the  oblij^atiou  to  bestow,  even  in  j^uardini?  aji:iiii>t  the  txccptuil 
danjicr  from  fire,  reasonable  care  and  diligence  in  taking  cure  of  the  freight."' 
So,  where  the  question  was  whether  a  railroad  company  hud  boon  negligent  in 
blowing  the  whistles  of  locomotives  at  crossings  so  as  to  frighten  horses,  ii, 
was  hel'  '  "competent  to  show  a  custom  on  other  railroads  to  blow  whistles  in  a 
simihir  way.  "If  all  the  railroads  in  the  country,"  it  was  said,  *'adoi)t  any  rule 
or  custom  which  is  unreasonable  or  dangerous,  and  productive  of  injury,  the 
generality  of  the  custom  cannot,  in  a  given  case,  in  any  dugnn!  excuse  or  justify 
tlie  act." ''  And,  therefore,  where  the  negligence  imputed  to  a  railroad  company 
was  the  failure  to  maintain  a  tlagman  at  a  crossing,  the  custom  of  other  railroads 
In  malnlaiiiing  flagmou  at  crossings  was  excluded.^  In  an  action  against  a  city 
for  an  injury  to  a  pedestrian,  caused  by  an  opening  in  the  sidewalk,  ii,  was  ruled 
tliat  tlie  existence  of  similar  apertures  in  various  other  parts  of  the  city  for  a  lonir 
porioil  (lid  not  show  that  the  alleged  defect  was  not  one  for  which  the  city  was 
li:il)k'  if  aiiv  damage  was  occasioned  thereby.*  Therefore,  in  a  siil»se(iiicnt  case, 
wlierc  tlie  injury  was  from  a  defective  crossing,  and  evidence  of  the  luaiiiuT  in 
wlii(;li  other  cities  and  towns  of  similar  size,  character,  and  circumstances  cou- 
siriictcd  their  sidewalks  and  crossings  was  offered  and  reje(  ted,  the  Supreme 
Conn  said:  '-This  evidence  was  properly  refused,  on  the  ground  that  the  condi- 
tion of  like  structures  in  other  towns  and  cities  is  no  criterion  for  the  (Icfcmlant. 
If  ot'.ier  towns  and  cities  choose  to  suffer  such  public  necessities  to  he  in  an 
unsafe  and  dangerous  condition,  their  negligence  is  no  excuse  or  justification  for 
the  (leroiidant.  The  city  authorities  of  Champaign  are  to  do  their  whole  duty  in 
the  [Mciiiises  as  prescribed  by  law,  with  no  reference  as  to  wliat  may  be  done  or 
left  uMiloiio  by  the  authorities  of  other  cities."''  And  in  another  case,  an  action 
against  a  town  for  an  injury  received  by  reason  of  an  uncovered  drain,  evidence 
tliat  it  was  usual  for  towns  in  that  part  of  the  country  to  leav(;  drains  uncovc"",! 
was  exchiiled."  And  a  usage  cannot  excuse  an  agent  for  any  wilful  neglect  in 
securing'  the  property  of  his  principal.'' 

In  a  recent  case,  where  the  defendants  were  street-sprinklers,  wiiose  duty  it 
was  to  keep  iho  hydrants  which  they  used  in  pro|)er  order,  and  the  plaintiff  was 
liijiireil  in  the  winter-time  by  slipping  on  a  piece  of  ice  formed  by  water  which 
tliov  liad  allowed  to  escape  from  a  hydrant,  it  was  held  not  competent  to  show 
a  cusio;'\  among  street-sprinklers  that  at  the  close  of  the  season  for  sprinkling 
the  street.-  when  the  water  was  supposed  to  be  shut  off,  the  boxes  and  pipes 
were  hut  visited  until  the  opening  of  the  season  in  the  spring.  It  was  tlic  duty 
of  the  (le'cnijanis  to  visit  their  attaclmieiils  to  the  hi'drants  constantly,  if  con- 
stant viMi>  were  i.ecessary  to  prevent  overllows;  or,  if  they  cli(»e  not  to  maki; 
necessarv  vi-ii^,  they  were  answerable  for  the  conse(iu('nccs.  The  rights  of  a 
party  in  nvij  ihiMugli  this  iKJglect  were  not  dependent  upon  such  habits  as  they 
and  oLliLi-.i  111  the  same  business  might  choose  to  adopt.^* 


'  Ilibler  v.  Mr.rartncy,  :n  Ala.  501. 

-  Hill  r.  I'.piil.iml,  I'tc,  U.  C'o.,05  .Me.  433. 
Ami  M!L'  (iahiigiui  v,  Huxtun,  etc.,  K.  Co.,  1 
Alien,  IST. 

^  IJailcy  V.  Now  Unviiii,  etc.,  U.  Co.,  107 
Mass.  4'.'(i. 

*  Buuuu  V.  City  of  lioBtou,  ;1  Gush.  174. 


'  City  of  Champaign  f.  Patterson,. "JO  111.61. 

«  Hinckley  V.  Ilarii>tal)le,  lO'.l  Mii.sh.  \2i\. 

'  Uooilunow  V.  Tyler,  7  .Muss.  ;t(i;  ante,  p. 
180.  Anii  see  Stc|)heii.s,  etc.,  Transp.  Co.  v. 
Tiickerinun,  33  N.  .1.  i..  M;i. 

'*  Crocker  v.  iScliureman,  7  Mu.  App.  3S8. 


Pi  i 


;{.'io 


IN    Oll'FERENT    UKLATIONIS    AM)    OCtJLl'A  TIONH. 


Nnisanco —  Fraud. 


I;  I 


iri 


§  17.'?.  To  show  a  Nuisance. —  Bradley  v.  The.  Peiiple  '■  belongs  niidcr  ilu; 
head  of  usa|;os  affer;ting  the  law  of  iKislisciicf,  rejoctcd  by  tlio  courts,  Mkhii^Ii 
in  that  case  the  evidence  of  custom  was  to  show  iieitlisiouce,  not  to  excuse  it. 
The  defendants  were  indicted,  and  convicted  of  maintaining  a  nuisance.  Tlie 
nui.sance  was  a  powder-liouse,  whicli  was  built  of  pine  l)oards,  and  situated  only 
eleven  rods  from  a  liififliway  along  which  people  were  constantly  passini;.  It 
contained  several  tons  of  powder;  and  one  of  the  sides  below  the  floor  was  Idfi 
open.  It  was  proved  that  people  were  in  the  habit  of  taking  shelter  froui  the 
rain  under  it,  and  on  one  occasion  a  man  was  seen  smoking  there.  On  the  trial, 
an  artilleryman  who  had  been  in  charge  of  a  government  ordnance  bureau 
was  asked  to  describe  the  ordinary  mode  of  constructing  powder-magazines, 
and  testilled  that  they  were  constructed  of  earth,  frames  of  heavy  tiinbtr  beinj; 
llrst  set  in  the  ground;  that  no  nails  or  iron  was  used  in  any  part;  that  ihoy 
were  protected  by  outside  and  inside  doors,  and  that  no  person  was  permitted 
to  enter  them  except  in  stocking-feet.  For  the  admission  of  this  evidence  the 
conviction  was  reversed  in  the  Supreme  Court.  The  court  thougiit  tliat  if  the 
object  of  the  testimony  was  to  show  that  it  was  tins  duty  of  the  defendants  to 
build  their  powder-house  in  the  same  way,  it  was  incompetent;  "for,  to  hold 
tliat  all  dealers  in  gunpowder  who  have  occasion  to  keep  it  in  quantities  are 
bound  to  construct  their  storehouses  for  that  purpose  in  the  same  way  that  is 
deemed  necessary  for  forts  and  arsenals  would  virtually  interdict  the  tralllc.  iu 
the  article  by  private  persons,  who  could  not  afford  the  expense  necessary  to 
comply  with  any  such  requirement." 

§  174.  Frauds.  —  In  transfers  of  property  by  husband  to  wife,  or  by  wife  to 
husband,  or  where  one  of  them  is  tacitly  permitted  to  deal  with  tiie  property  of 
tlie  other,  the  (piestion  as  between  them,' or  between  either  and  'hose  elaiuiiiis 
as  assignees  or  successors  of  the  other,  is  one  of  intent.  There,  usage  as  well 
as  their  express  agreements  may  determine  whether  the  transaction  is  a  loan  or 
a  gift,  or  only  a  change  of  possession  under  an  agency.'^  In  an  action  for  fraud 
iu  the  sale  of  wool,  the  fraud  consisting  in  the  delivery  of  several  ounces  of 
unwashed  tags  and  dirty  wool  concealed  in  each  deece,  the  custom  of  i)uttitig 
up  wool  in  the  section  of  the  country  where  it  is  bought  is  relevant.  ' 

Fraud  cannot  be  proved  by  independent  evidence  of  a  custom ;  therefore,  in 
Gerhard  v.  Neesc,*  where  a  common  carrier  brought  an  action  for  freiicht  eaiiuil 
in  transporting  cotton  from  a  point  in  the  State  to  Brownsville  during  llie  civil 
war,  and  the  defendant,  in  order  to  raise  a  presumption  tliat  tin;  plaintiff  was 
engaged  in  an  illegal  exportation  of  tlie  cotton,  was  allowed  by  the  court  to 
prove  a  custom,  then  prevalent,  of  running  cotton  from  IJrovvusville  across 
the  Rio  (iranile  into  Mexico,  this  was  held  to  be  error. 


1  .'M5  Harb.  72. 

■-'  Abb.  on  Trial  Ev.  173;  Cliambovet  v. 
Cngney, ;»  N.  V.  S.  C.  (J.  &  S.)  48(>:  Jacobs  r. 
Hessler,  H:!  .Mass.  161;  Klelne's  Appeal,  ;)9 
Pa.  St.  4«3;  .Mason  r.  Howies,  117  Muss.  SH; 
Campbell  r.  (Campbell,  '21  Mich.  43S;  .Mover's 
Appeal,  "7  Pa.  st.  4Sii;  Alston  t>.  Kowlos,  13 
Fla.  123;  Huston  c.  Clark, 50 N.  11.4a2;  South- 
wiok  V.  Soulliwiek,  S)  .\bb.  I'r.  (n.  s.)  lO'.i;  49 
N.  V.  .MO;  Mall  i:  VouMg,;!7  N.  H.  i;U;  LyonB 
r.  Green  Hay,  etc.,  R. Co., 4!J  Wis.  548;  Patten 


V.  Fatten,  75  111.  440;  Aahworlh  r.  Outrarn,  .17 
L.  T.  (X.  S.)  85;  I'eters  t'.  Fowler,  41  ISarb. 
4(i7;  Mart  v.  Young,  1  Lans.  -U" .  Na-h  v. 
Mitebell,  3  Abb.  .\.  C.  171;  Wli.-clon  f. 
Clianiplin,  59  Harb.  61;  Smith  r  Kfiniedy, 
13  llun,  9;  Cuek  t:  Quackeiibii-li,  li  Hun, 
107;  Hills  r.  Iloitt,  18  N.  H.  tin:!.  And  sen 
ante,  §  165. 

)  Willard  V.  .^Icrritt,  15  Uarb.  2'.i5. 

4  36  Texas,  635. 


i. 


m 


NKCLIUKNCE. 


331 


I          ?    ;     '^ 

i  5  V  If  M 

■■^i'iiR 

..  isl 

■   ■: .    ? 

il  f 

i 

Trespass. 


§  175.  Trespass.  —  VVliat  is  a  roasoiiablt!  and  proper  use  of  a  public;  or  private 
way  depends  niucii  on  pul)Iic  nsuue.  Tiie  nonoral  use  and  acqiiiosoence  of  the 
Irtibllc  is  evidence  of  the  rii^ht.  The  owner  of  land  may  make  sucli  reasonabU' 
iise  of  the  way  adjoining  his  land  as  is  usually  made  by  others  sinnlarly  situated. 
In  a  populous  town,  where  land  is  valuable,  it  is  tlie  custom  to  erect  buil(lin<;s 
and  ffncos  on  the  line  of  the  street,  and  to  place  doors  and  gates  in  them  so  as, 
when  opened,  to  swing  over  the  street.  In  like;  way,  where  tlie  owner  of  a  lot 
in  such  a  situation  has  occasion  to  build,  and  for  that  purpose  to  dig  cellars,  it 
is  usual  to  lay  his  building-materials  and  earth  within  the  limits  of  the  street. 
So,  again,  to  improve  the  way,  an  adjoining  owner,  with  an  honest  intent  to 
improve  the  way  and  make  it  more  convenient  for  public  use,  somiitimes  spreads 
earth  and  gravel  on  it.  A  proprietor  allows  ornamental  work  on  his  liouse  to 
project  over  tlie  street;  he  permits  horses  and  carriages  to  stand  in  tlie  street 
against  or  near  his  house.  All  these  acts,  it  is  true,  are  technically  trespasses; 
but  consideiinir  the  usages  and  customs  of  tlie  community,  they  are  not  so. 
Thoy  become,  by  virtue  of  tliese,  appropriate  and  proper  uses  of  the  higliway. 
W^ere  it  not  so,  as  said  by  Martin,  J.,  in  a  Massachusetts  case,'  "  very  few  of 
us  would  escape."  -  But  wliere  a  person  had  erected  a  bay  window  to  his 
house,  projecting  over  the  land  of  an  adjoining  owner,  the  court  said:  "If 
there  be  a  custom  in  Boston  to  erect  bay  windows,  balconit^s,  and  other  struc- 
tures over  the  streets,  provided  they  do  not  interfere  with  the  riglits  of  the 
public,  by  proprietors  who  own  the  soil  of  the  street,  sucli  a  custom  has  no 
application  to  tlie  case.  If  it  be  the  custom  to  erect  tliem  over  the  iand  of 
otlier  people,  such  a  custom  is  illegal,  and  the  defendant  cannot  justify  himself 
in  occupying  his  neighbor's  property  as  a  part  of  his  dwclliug-lioiise  on  tlie 
ground  tliat  such  trespasses  are  customary  in  Boston."'  And  the  custom  of  the 
Inhabitants  of  a  part  of  a  city  to  allow  children  to  play  in  the  streets  does  not 
filiow  that  such  use  of  the  streets  was  lawful.* 

But  a  custom  to  take  anything  from  another's  land  could  not  be  supported  at 
conunon  law,  the  rule  being  that  a  profit  a  prendre  could  not  l)e  claimed  in  nlic.no 
soloJ'  A  custom  to  occupy  or  take  from  the  land  of  another  is  biu]/'  And, 
except  as  seen  in  the  last  paragraph,  a  usage  cannot  excuse  a  trespass.'     A  gcn- 


»  O'Linda  v.  Ix)throp,  21  P;ck.  292. 

»  UnderwoDil  v.  Carney,  1  Cusli.  'JHri;  Ger- 
ml  ,'.  Coolv,  2  fJos.  A  I'ul.  \.  It.  10.1;  I'hii.i- 
flol|iliia  V.  Presliyteriiin  Uoaril,  2'.i  l.off.  Int. 
fCj;  The  Cominoinvcahh  v.  itlaisdcll,  107 
Mass.  2:14;  Hall  v.  Nottingliam,  H  Week. 
Rep.  ,")S. 

'  Oodman  v.  Kvan»,  .■>  Allen,  378. 

'  schierhold  v.  North  Reach,  etc.,  U.  Co., 
40  (  al.  447.  And  hcu  Kvan.s  v.  Bidwell,  20 
Conn.  209. 

I!:i8tard  »'.  Smith,  2  Moo.  &  It.  121);  Itace  r. 
Ward,  4  I';i.  &  Bl.  702;  Cotistaljlc  i:  Nichol- 
S'ln,  14  C.  n.  ^N.  s.)  2:!0;  Cliurton  r.  Krewen, 
I..  R.  2  Kq.  OW;  Haniner  r.  Chance,  11  Jur. 
(v.  s.)  397;  Shiitlleworth  v.  Le  Fleming,  19 
'■  R.  (N.  s.)  (;S7;  nycp  r.  Hay,  1  Alacii, 
h.  I..  Cas.  3or),  Bland  t-.  Kipscombc,  I  Kl.  * 
HI.  712 ;  IJur.  (n.  s.)  707 ;  3  Com.  Law  Ke(>.2GI ; 
Steel   r.  Houghton,  1    U.  Black.  51;   Worl- 


lodge  V.  Manning,  1  II.  Bla(;k.  53;  Lloyd  v. 
.Jones,  12  Jur.  t^T ,  17  I..  .1.  (C.  I'.)  20fi;  0  C.  B. 
81;  Attorney  (ieneiiil  r.  Mathia.s,  27  L.  .J. 
((;ii.)  761;  Wilkinson  r.  I'roud,  11  Moe.  &  W. 
;!;i;  llorton  v.  Itccktnaii,  6  Term  Itep.  7(iO; 
(irimstead  v.  Marlowe,  t  T(!rin  Itep.  717; 
CooptM-  r.  Barber,  3  Taiin.  99,  (iateward'.-, 
Case.li  C()ki',(iO  b;  Canbalii  r.  I'ish,  I  I'licc 
I*.  ('.  14H.  A  custom  tliat  .all  the  inhabilants 
of  a  particular  town,  for  the  time  being, 
have  a  right  to  depasture  the  unenclosed 
lands  of  individual  proprit'lois  williiu  llie 
town,  is  void.    Smith  r.  F'IomI,  l-t  IJ.nb.riJ.I. 

'*  Watov.s  r.  Lillpy,  1  I'iek.  \^rr,  1(1  Am. 
Dec.  :!33;  Cobb  v.  Davenport,,  3  \'rooni,  ;JU9; 
Liltlelicld  v.  Maxwell,  31  Mc.  1;I6;  Kenyon  t). 
Nichols,  1  U.  I.  106. 

''  Rivers  v.  Burbank,  13  Nev.398;  Knowles 
V.  Dow,  22  N.  H.  ;!87;  I'erley  v,  Langlejr,  7 
\.  ir.2;!3;  Nudd  r.  llobbn,  17  N   H.  525. 


li  y 


b  ','1* 


p 


m 


p. 


332 


IN    DIFFKRENT    RELATIONS    AND    OCCUPATIONS. 


Nojiliirt'iict!. 


eral  usage  of  dcpositiiif^  lumber  on  the  bank  of  a  river,  witliont  more,  cnnni 
raise  a  presumption  of  a  grant.'  In  an  action  of  trespass  for  i<illing  u  maiv 
witli  dogs,  that  it  is  the  custom  of  the  neiijliborliood  to  set  dous  on  hoist - 
which  broke  into  fences  or  enclosures  is  irrelevant;'-  but  where  the  plaiiitilfs 
eolt  had  been  killed  by,  as  was  alleged,  the  negligence  of  the  defendant  in 
removing  trees  on  his  land,  it  was  held  that,  it  being  sliovvn  to  be  Uu'  cu  ti-ni 
of  the  neighborhood  to  permit  horses  and  cattle  to  run  at  li'rge,  the  defenilani 
could  not  resist  the  action  on  the  ground  that  the  colt  was  trespassing  on  In-* 
land  when  it  was  killed.  ^ 

In  North  Carolina  it  is  held  that  a  license  to  enter  upon  land  and  take  ilsli 
cannot  be  implied  by  proving  a  custom  in  the  country  at  large  for  every  pcrsm, 
to  enter  upon  such  lands  and  take  llsh.  **By  the  common  law,"  say  tlic  couit. 
"  an  imaginary  line  is  thrown  around  the  land  of  every  one,  which  may  nut  \n- 
entered  without  subjecting  the  wrong-doer  to  an  action.  No  custom  or  us;  l" 
can  change  this  law.  If  the  owner  of  land  unreasonably  refuses  to  allow  lii^ 
neighbors  to  fish  in  his  mill-pond,  or  to  gather  strawberries  in  his  old  fleld,  the 
only  correction  is  to  arraign  him  at  the  bar  of  public  opinion  for  the  violation  (if 
the  rules  of  good  neighborship."  *  On  the  other  hand,  in  a  recent  Michi!.'aii 
case,*  an  action  of  trespass  was  brought  against  the  defendant  for  flshin<r  in  tin 
plaintiff's  lake.  The  plaintiff  had  a  verdict,  which  was  reversed  on  appeal.  The 
court  admitted  the  right  of  the  landholder  over  the  lake  in  question,  but  sakl: 
"  It  has  always  been  customary,  however,  to  permit  the  public  to  tak(;  fish  in  all 
the  small  lakes  and  ponds  of  the  State,  and,  in  the  absence  of  any  uotiiiiaiiDii 
to  the  contrary,  we  think  that  any  one  may  understand  that  he  is  licensed  to  ihi 
so.  No  such  notification  appears  in  this  case,  and  we  therefore  hold  tliat  tlie 
defendant  was  not  a  trespasser  in  passing  upon  plaintiff's  land  with  the  intent  to 
take  fish,  having  no  knowledge  that  objection  existed  to  Iiis  doing  so."  Tliis 
quotation  includes  everything  that  was  said  by  the  court,  and  the  conelusion  is 
therefore  unsatisfactory,  for  wanting  any  reference  to  the  older  oases.'- 

Where  there  is  a  general  usage  in  a  neighborhood  to  let  cattle  run  at  laiiie 
upon  the  highway  and  unenclosed  lands  adjoining,  one  adopting  the  usage  is 
taken  to  have  thereby  licensed  the  cattle  of  others  to  run  at  larg(;  on  his  1  mils 
so  situated.' 

§  17(5.  Use  of  Watercoiiraes.  —  As  to  what  is  a  reasonable  use  of  water  iu  a 
stream  is  always  a  question  of  fact,  and  is  to  be  determined  by  tlie  capacity  ui 
the  stream,  tlie  nature  and  character  of  the  works  sought  to  be  propelled  tlierobv, 
the  machinery  used,  or  the  reasonable  necessities  of  the  mill-owner  in  view  of 
all  the  facts,  and  finally  by  the  custom  of  the  country.^  "  Usage  is  some  pro. if 
of  what  is  considered  a  reasonable  aad  proper  use  of  that  which  is  a  eoiniiioii 
right,  l)ecause  it  affords  evidence  of  the  tacit  consent  of  all  parties  interestmi 
to  the  general  convenience  of  such  use."  ' 


'  Bcthum  V.  Turner,  1  Me.  111.  And  Bce 
Heath  V.  Kicknr,  '2  Me.  72;  A  laiUB  v.  Morse, 
61  Mc.  497. 

0  Evans  v.  Hester,  1  Bibb,  561. 

9  Durham  v.  Musselmun,  '2  liluckf.  <J6;  18 
Am.  Dec.  133. 


*  W.ndcr  v.  IJluko,  4  Jones  L.  :V,2. 
6  Marsh  v.  0»lby, ;!!»  Midi.  (i'Jti. 

*  Anil  see  Lloyd  r.  Jones,  (i  ('.  15.  81, 
'  Wheeler  c.  Uowell,  7  N.  H.  oi:>. 

*  Wood  on  Nuis.,  §410. 

«  Uould  V.  Boston  Duck  Co.,  13  Gi  'V,452; 


nfililF^ 


NKOLIGKNCE. 


nii'A 


Criinrs. 


§177.  OlQces  and  Officers.  —  Usaije  may  proscribe  an  officer's  duty,'  his 
powers,-  and  his  compensation.'  In  roijard  to  tlio  filling  of  offices,  tlie  usaue  of 
the  fjoverument*  and  the  custom  of  a  churcli  society  ■■  have  in  different  cases 
been  recognized.  So,  the  lon<;-continucd  i)raeiic',o  of  the  executive  department 
of  tlif  government  to  sign  bills  passed  by  the  legislature,  in  a  certain  mode,  is 
noticed  by  the  courts.''  In  a  Kentuclty  case,  where  an  acknowledgment  was 
t;ii<i'n  by  a  depnty-clerk  who  at  the  time  was  a  minor,  the  court  said :  "  There 
is  u  )  statute  in  this  State  prescribing  the  qualifications  of  a  deputy-clerk.  It  has 
bicu  the  immemorial  custom  of  clerks  to  appoint  minor  deputies,  and,  as  far  as 
wf  are  advised,  the  legality  of  such  appointments  lias  never  before  been  called 
ill  (juestion,  and  we  must  regard  such  long-continued  acquiescence  on  tlio  part 
of  the  legislature,  tlie  bench,  and  the  bar  as  the  very  liighest  pussilile  eviilciice 
of  it>  legality." '  The  following  acts  have  been  supported  by  the  courts  on 
proof  of  usage,  viz. :  A  sale  by  the  sheriff,  by  virtue  of  writs  of  vonlitMui 
enponas,  iiiU'T  the  return-day;'*  the  approval  of  an  administration  bond;'  the 
reciipt  by  a  deputy-sheriff  of  the  amount  due  on  an  execution,  and  its  discharge 
after  the  return-day;  '"  the  employment  by  a  notary-public  of  c'erks  to  perfor  o 
A  part  of  liis  duties."  And  in  an  action  by  a  sheriff  on  the  bond  of  one  of  his 
deputies,  the  question  being  whci...or  a  certain  return  was  a  false  one,  evidence 
that  it  was  in  accordance  with  custom  was  held  competent.'^ 

Where  a  justice  of  the  peace  was  indicted  for  malpractice  in  office,  in  not 
returning  a  warrant  and  recognizance  issued  by  him  to  the  Supreme  Court,  but 
wilfully  and  corruptly  suppressing  it,  evidence  of  a  practice  of  other  justices 
going  to  excuse  the  defendant's  acts  was  rejected.'* 


§  178.  Crimes.  —  In  TId'  Statu  v.  Ramsay,^*  a  prosecution  against  one  for  dis- 
turbing worship,  in  interrupting  the  services  by  rising  to  his  feet  in  the  congrega- 
tion and  persisting  in  speaking,  until  removed  from  the  church,  it  was  hehl  proper 
for  tlie  State  to  ask  a  witness  "  if  it  was  a  custom  in  this  clinrch  for  an  expelled 
uiiiuijer  to  get  up  on  the  Sabbath  day,  just  before  or  at  the  beginning  of  the 
re^'ular  service,  and  make  known  his  grievances."  \Vheri' one  is  indicted  for 
carrying  a  weapon  concealed  on  liis  person,  and  (lie  issue  is  whether  the  weapon 
(a  pistol")  was  concealed,  that  it  was  his  custom  to  carry  a  pistol  about  his 
person  up,  uly  exposed  to  view  is  irrelevant.'' 


Tluirber  r.  >r,iitiii, 2  Gray,  SM ;  Snow  ,  Var- 
•ons.iS  Vi.  *:>:>:  Duiiiontr.  Kellogg,  •2!i  Mich. 
120;  Tiinii)  r.  Hear,  i'.t  Wis.  2,'i4 ;  Thomas  v. 
livacliuey.  i:  P.arb.  (!54:  Hill  v.  Ward,  ;  111. 
>"i;  I'dllitl  r.  Long,  58  Harb.  20;  Bassett  v. 
-iili.-bury  Man.  Co.,  4;!  X.  II.'MT;  Hays  v. 
W.ihlroii,  44  N.  1[.  ."tSl ;  Norway  I'lains  Co.  t>. 
I'.ruillcy, .-..'  N.  H.  110. 

'  Fiinniiij;^  r.  I^ird  Gienville,  1  Taun.  211; 
Wiiods  c.  (ialbraith,  2  Yeates,  IlOtl;  Kddy  v. 
Kiiulkner.  ;5  Veai.'^,  .MO. 

•  Taylor  v.  Sotolingo,  t>  La.  An.  l.M. 
I  luied   suiU'.i   f.    .Mi-Daniel,  7    Pet.    1; 
United  Stales  v.  Fillebrowu,  7  i'et.  28. 


<  The  State  v.  I-owcU,  l.'i  Ark.  604. 
'-  MiUiM-  r.  K.-<hl)a(:b,4:!  Md.  1. 

6  Solomon  1'.  (Joinniis-ioncrs,  41  Ga.  157. 

7  Tulbotl  V.  Hoosor,  12  Mush,  410. 

«  lilythe  i\  KichanU,  10  iSerg.  &  K.  201;  13 
Am.  Dec  072. 

■'  Mayhew  v.  Soper,  10  Gill  &  J.  ;{66. 

'"  Wyer  v.  Andrews,  11!  Me.  lOS. 

"  Monroe  v.  Woodruff,  17  Md.  159. 

l»  Naylor  v.  Seninies,  4  Gill  &  J.  273. 

'■>  Lyncs  i>.  The  State,  40  Ga.  20S. 

I*  78  N.  C.  4*8. 

)?>  Wa-hingt.oi  c.  The  .state,  a6  Ga.  242. 
And  sue  further,  ante,  i  30. 


St 


■  >!i; 


C  IT  AFTER     IV. 


ON    TUKIR 


AI)M!S*<l|in.lTY    TO    EXPLAIN    WRITIKN 
Ol'lli.U   EXPRESS   CONTRACTS. 


AND 


Illustratu  I-  Casks:  — 

24.  Sinitk  V.  Wilson.  —  To  explain  words  and  phrases  thtriMn. 
2,").  Cooper  v.  Kane.  — To  add  terras  and  incidents  tlieioto. 
20.  Humfrey  v.  Dale.  —  Same  principle. 

27.  Byerss  v.  Wheeler.  —  To  interpret  wills. 

28.  Tilley  v.  City  of  Chicago.  —  Not  admissible  where  no  (.ontracl 

is  shown. 


Notes  :  §  179. 
180. 
181. 
182. 
183. 
184. 
185. 
186. 

187. 
188. 
189. 
100. 
191. 
192. 
193. 
194. 
195. 
19(>. 
197. 
198. 
199. 

200. 
201. 

(884) 


Parol  evidence  not  receivable  to  vary  or  contradict  a  writing. 

Admissibility  of  evidence  of  usage  —  Views  of  Mr.  Buownk. 

Usage  may  explain  technical  or  unintelli<iible  terms 

Classification  of  the  cases. 

Usajre  admissible  to  add  unexpressed  terms  to  written  contracts. 

Incidents  annexed  to  contracts  generally. 

Incidents  added  by  usasi^e  cannot  establish  a  oontracl. 

That  parties  dift'ci'ed  as  to  the  usage  does  uoL  destroy  tlir  "on- 

tract. 
Usage  not  admissible  to  supply  disputed  terms. 
Contracts  of  sale  —  Usage  as  to  quality  and  description  ol  j^oods. 
Same  —  Usage  as  to  quantity  and  price. 
Same  —  Other  cases. 

Principal  and  agent  —  Usage  and  custom. 
Other  cases  —  Suretyship — Attorney  and  client. 
Bailment  or  sale. 

When  admissible  to  explain  deeds. 
Sporting  usages. 
Mines  and  mining. 
Contracts  for  labor  and  materials. 
Master  and  servant  —  Contracts  of  service. 
Same  — To  explain  the  duties  of  an  employment  under  n  written 

contract. 
Usage  admissilde  in  explanation  of  wills. 
Evidence  of  usage  to  explain  words  and  phrases  itj  poMoIes  of 

insurance. 


TO    KXPLAIN    WOl!l>S    AM)    rtiKA8E8. 


335 


Ilhistrutivr  ('uses. 


Notes:  §202.  Same  —  .Maiinc  iiisnriiucc. 

203.  Siimo  —  Kirc  policies. 

204.  To  explain  l)ills  of  lading. 

205.  To  L'xpliiiu  (;liiirler-p:irLies  and  other  maritime  eoatracts. 


no  contract 


n  contracts. 


luoi  ^'oods. 


24.  TO   EXPLAIN    WORDS    AND   PflRASKS   TFIEHIilN. 

Smith  v.  Wilson.* 

In  the  Eagllfh  Court  of  Kiarfs  Be.itrh.  Trim'''/   Term..  1So2. 
Chaim.ks,  Lord  Tkntkuiu-.n,  Chief  JitsUo-. 

Sir  JOSKPH    LlTTMCDALK,   Kt.,  | 

"    Jamks  Parke,  Kt., 

"    Wn,i-£AM  Elias  Taunion,  Kt., 

"    John  Patikson,  Kt., 


/((rfj/ef, 


111  a  loase  of  a  rabbit-warren,  the  lessee  covenanted  that  at  the  expiiiition  of  the  term  he 
would  leave  on  the  wurrcn  tcti  thousand  rabbits,  the  lessor  paying  for  them  XfiO  per 
thousand.  In  an  action  by  the  lessee  against  ttio  lessor  for  refusing  U)  pay  for  the  rabbits 
left  at  the  end  of  the  term:  helil,  that  i)arol  evidence  was  admissible  to  show  that  by  the 
custom  of  the  country  where  the  lease  was  made,  the  word  "  thousand,"  as  applied  to 
rabbits,  denoted  ticeli-c  hundred. 

This  was  an  action  for  the  breach  of  the  followiiiL'  covenant  in  a 
lease,  whereby  the  defendant  demised  to  the  plaintiffs,  inter  aJia,  a 
warren  :  *'  That  at  the  exi)iration  of  the  term,  they  (the  (ilaiDtiffs)  would 
leave  on  the  warren  10,000  rabl)its,  or  conies,  the  defendant  paying  £60 
per  thousand  for  the  same,  and  for  any  more  than  that  number,  at  that 
rate,  the  number  to  l)e  estiniaced  l)y  two  different  p(U'Soiis,  one  to  be 
elinson  b}^  each  party."  Avt-iment  that  at  the  expiration  of  the  term 
the  plaintiff.s  left  more  than  10,000 — to  wit,  19,200  —  rabbits  upon  the 
warren,  but  that  the  defendant  would  not  pay  for  the  same.  l*lea: 
Noyi  Oil  factum. 

At  tlie  trial  before  Gakuow.  B.,  at  the  .Summer  Assizes  for  Suffolk. 
l^^-'U.  it  ai)peare(l  that  at  the  ex[)iration  of  the  term  the  number  of  ral)- 
hits  on  the  warren  was  estimated  by  two  different  per>()ns  cliosen  by  the 
parties  to  be  1,600  dozen.  It  was  contended  for  tiie  defendant  that, 
aeeordinjr  to  the  custom  of  the  country,  the  1,000  dozen  should  be 
(toniputed  at  100  dozen  to  the  thousand,  and,  therefore,  that  the  defend- 
ant was  liable  to  pay  but  for  16,000  rabbits.  On  the  other  hand,  it  was 
insisted  for  the  plaintiffs  that  the  wonls   "per  thousand"  must  be 

•  Reported  I!  Barn.  &  Adol.  728. 


lii 


l(.  ■ . 


.    ,, 


'ill? 


:j8H 


THBIK    AOMIssilllLITV    TO    FIXPLAIN    CONTRACT8. 


Smith  V.  Wilson. 


understood  in  the  or^liiiary  sense,  and  tluit  the  defendant  'tn<jflit  to  \y.\y 
for  l!),-200  rabbits,  bcin;i;  1,G0()  dozen.  The  defendant  paid  into  court 
a  sufficient  sum  to  pay  for  16,01)0  rabl)its.  Evidence  was  offered  hy  tlie 
defendant  to  show  tliat  the  term  "  tliousand,"  as  applied  to  r;i!)l)its. 
meant  in  that  part  of  the  country  100  dozen.  Tliis  cvidencf  was 
objected  to,  but  received  by  the  learned  judge,  and  he  directed  the 
jury  to  find  for  the  defendant  if  they  thonglit  it  was  proved  thfit  the 
word  "  thousand,"  as  applied  to  rabbits,  meant  100  dozen.  A  vcidii-t 
having  been  found  for  the  defendant,  a  rule  nisi  was  ()l)tained  for  :i  new 
trial,  on  the  ground  that  the  evidence  had  been  improperly  received. 

Biggs  Andrews  now  showed  cause. — The  evidence  was  :tdmissi))lo. 
The  word  "  tlrmsand  "'  does  not,  either  in  law  or  practice,  denote  a  pre- 
cise number  of  units.  A  thousand  may  more  generally  than  otlicrwiso 
denote  ten  hundred,  of  five  score  to  the  hundred ;  but  there  are  luunv 
instances  where,  as  applied  to  a  particular  article,  it  denotes  six  score 
to  the  hundred — as,  nails,  Iierrlngs,' deal  boards.  As,  tlu'refoiv  tlic 
word  has  more  than  one  meaning,  its  imj)ort  in  any  parti-niar  iusirii- 
meiit  depends  on  the  subject-matter  to  which  it  is  ap})lied.  But.  even 
if  in  its  ordinary  and  popular  sense  it  means  ten  hundnnl,  yet  if  it  has 
acquired  (in  respect  to  the  subject-matter  t<»  which  it  is  appli<!(l)  a 
peculiar  sense  distinct  from  the  popular  one,  then  in  all  contracts 
relating  to  that  particular  subji'ct-inatter  the  acquirofl  meaning  must  l)e 
put  upon  it.-  The  object  of  the  evidence  is  not  to  adil  to,  vary,  or 
contradict  the  deed,  but  to  explain  tlie  meaning  wliidi  a  party  to  :i  con- 
tract must  have  put  upon  a  particular  word  used  in  it,  and  that  muhi,  he 
ascertained  by  evidence  dehors  the  deed.  Wherever  parol  evidence  has 
been  rejected  in  cases  of  this  kind,  it  was  because  the  effect  of  it  was 
to  show  that  the  parties  meant  something  diffident  from  what  they  tiave 
said ;  but  here  that  was  not  the  effect  of  the  evidence,  and  it  was 
admissible  according  to  the  rule  laid  down  in  S/arki''  on  Eoidenre.'-^  In 
CHide  V.  Wi(ft>'rs,'^  where  an  insurance  was  to  any  port  in  the  IJaltic.  evi- 
dence was  admitted  to  show  that  the  Gulf  of  Finland  was  considered,  in 
mercantile  contracts,  within  the  Baltic,  although  the  two  seas  are  tre;ited 
as  distinct  by  geograpliers.  So,  in  Baker  v.  Paii»e.''  where  the  ca|it:iin 
of  an  India  ship  sold  all  his  chin;i-ware  and  merchandise  which  he 
brousrht  home  in  his  last  vovasie.  and  covenanted  to  deduct  all  due 
allouiances,  etc.,  he  was  permitted  to  adduce  proof  of  a  custom  to  show 
that  such  allowances  were  to  be  limited  by  the  price  which  he  was  to 


'  By  the  statute  M  Kdw.  III.,  st.  2,  c.  2.  -  Paffc  1033. 

"  Uoberlson   r.  I'rench,  4  Eiist,   135,  per  *  3  Ciiiiii).  16. 

1-oid  Ellenborougli.  *  1  Ves.  45!). 


I' 


TO    EXPLAIN   WOKDS    AND    THUASES. 


337 


Illustrative  Cases. 


receive.  In  \Viii<jl('-'<>vorth  v.  DtilUioti,^  it  was  iield  that  parol  evidence 
wiis  admissible  to  show  that,  iJ.ccording  to  the  custom  of  the  couutrj', 
wliere  a  lease  for  a  term  of  years  expired  on  the  1st  of  Ma}',  the  tenant 
wOvS  entitled  to  take  the  wayijuing  crop  after  the  expiration  of  the  term. 
tlioii<j;li  this  was  not  mentioned  in  the  deed  executed  between  the  par- 
ties.- Doe  dem.  ISpicer  v.  Lea  •'  may  be  relied  upon  on  the  other  side. 
There  a  lease  was  made  after  the  alteration  of  the  style  by  act  of  Par- 
liament, and  extrinsic  evidence  to  show  that  the  parties  meant  Michael- 
mas according  to  the  old  style  was  held  to  be  inadmissible ;  but  that 
proceeded  on  the  ground  that  the  parties  must  be  taken  to  have  used 
the  term  in  conformity  with  the  statute,  which  expressly  regulated  the 
reckoning  of  time. 

Kdly  and  Auntin,  contra.  —  The  general  rule  is  that  parol  evidence 
is  not  admissible  to  explain  a  written  instrument ;  and  in  Andetfion  v. 
Pitcher,^  Lord  P^f.don  regretted  that  the  practice  had  obtained  of  receiv- 
ing such  evidence  even  as  to  policies  of  insurance.  In  tlie  herring 
trade  a  precise  meaning  is  given  to  the  word  "  thousand,"  as  applied  to 
that  particular  subject-matter,  by  act  of  Parliament.  Here  the  words 
of  the  covenant  must  be  construed  in  their  ordinary  sense.  The  ambi- 
guity, if  any,  is  at  all  events  latent.  It  is  produced  by  something 
extrinsic  or  collateral  to  the  instrument.  The  covenant,  however,  will 
have  an  operation  if  the  parol  evidence  is  not  received,  and  then, 
according  to  Doe  dem.  Chichester  v.  Oxenden,^^  such  evidence  is  not 
admissible.  To  say  in  the  present  ease  that  a  thousand  means  twelve 
hundred  is  not  to  explain,  but  to  contradict  the  deed.  In  Hockin  v. 
Cooke,^  proof  that  the  defendant  agreed  to  sell  so  many  bushels  of 
corn  according  to  a  particular  measure  was  held  not  to  support  an 
allegation  in  a  declaration  that  he  undertook  to  sell  so  many  bushels, 
because  "  bushels,"  without  any  other  explanation,  meant  a  bushel  by 
statute  measure.  So,  a  reddendum,  in  an  old  renewed  lease,  of  so  man}' 
quarters  of  corn  was  held  to  mean  Winchester,  and  not  the  customary 
bushel. ■^  And  in  Wing  v.  Erle,^  Gaudy,  J.,  said  that  "  if  one  sells  land, 
and  is  obliged  that  it  contains  twenty  acres,  this  shall  be  according  ta 
the  law,  and  not  according  to  the  custom  of  the  country." 

Lord  Tenterden,  C.  J.  —  I  am  of  opinion  that  the  evidence  was  prop- 
erly received.  Where  there  is  used  in  any  written  instrument  a  word 
denoting  quantity,  to  which  an  act  of  Parliament  has  given  a  definite 


'  1  Doug.  201,  ante,  p.  169. 
'  Sec  other  instancee  cited  in  Cross  v. 
Eglin,  2  Barn.  &  Adol.  106. 
» 11  East,  812. 
'  2  Bog.  A  Pnl.  168. 


6  3  Taun.  147. 
«  4  Term  Rep.  314. 

'  The  Mai^ter,  etc.,  of  St.  Cross  v.  Lord 
Howard  de  Walden,  6  Term  Rep.  338. 
"  Cro.  Eliz.  267. 


sa 


33« 


THEIK   ADMlbSIUlLlTY   TO   EXPLAIN    C0NTKACT8. 


m  5 


Smith  u.  Wllsou. 


¥' 


111- 


ineaiiinuf,  I  agree  it  must  be  considered  to  have  been  used  in  tluit  sense. 
But  there  is  no  act  of  Parlianient  which  says  one  tliousand  ral)liits  sliull 
denote  ten  hundred,  each  hundred  consisting  of  five  score;  and  that 
being  so,  we  must  suppose  tiie  terra  ''thousand  "  to  iiavo  been  iisod  hy 
the  parties  in  tlic  sense  in  which  it  is  usually  understood  in  tlic  |)l;uv 
where  the  contract  was  made,  when  applied  to  the  suT)joet  of  rabbits,  and 
parol  cviilencc  was  atlniissible  to  show  what  that  sense  wp  .. 

LiTTLKUALE,  J.  —  I  am  of  the  same  opinion.  "Words  denoting  quan- 
tity are  undoubtedly  to  be  understood  in  their  ordinar}'^  sense,  whi'io  no 
specific  meaning  is  given  to  them  Ir  b  ilute  or  custom.  But  horr  the 
ordinary  meaning  of  the  word  "thousand,"  as  applied  to  rabbits  in  the 
place  where  the  contract  was  made,  was  one  humlred  dozen.  Tlie  wovd 
"hundred"  does  not  necessarily  denote  that  number  of  units,  for  one 
hundred  and  twelve  pounds  is  called  a  "  hundred-weight;"  so,  wlioic 
that  term  is  used  with  reference  to  ling  or  cod,  it  denotes s?j;  score;  and 
there  being,  therefore,  no  precise  meaning  aflSxed  by  the  legislature  to 
the  word  "  thousand,"  as  applied  to  rabbits,  I  think  that  parol  evidonrt- 
was  admissible  to  show  that  in  tlie  country  where  the  contract  was  matle 
the  word  "•  thousand  "  meant  one  hundred  dozen. 

Pakkk,  J. — The  only  cpiestion  is  whether  the  evidence  has  been 
properly  received.  Assuming  that  it  has,  the  jury  have  found  that, 
according  to  the  custom  of  the  country,  there  was  an  understanding 
between  the  parties  to  this  contract  that  the  defendant  should  pay  for 
the  rabbits,  computing  them  at  the  rate  of  one  hundred  dozen  to  the 
thousand.  The  rule  deducible  from  the  authorities  on  this  subject  is 
correctly  laid  down  in  3  Starkie  on  Evidence:^  "Where  terms  are 
used  which  are  known  and  understood  by  a  particular  class  of  per- 
sons in  a  certain  special  and  peculiar  sense,  evidence  to  that  effect  is 
admissible  for  the  purpose  of  apjibfing  the  instrument  to  its  proper  sub- 
ject-matter ;  and  the  case  seems  to  fall  within  the  same  consideration  as 
if  the  parties,  in  framing  tiieir  contract,  had  made  use  of  a  foreign  lan- 
guage, wl  ich  the  courts  are  not  bound  to  understand.  Such  an  instru- 
ment is  not  on  that  account  void  ;  it  is  certain  and  definite  for  all  legal 
purposes,  because  it  can  be  made  so  in  evidence  through  the  medium  of 
an  interpreter.  Conformablj'^  with  these  principles,  the  courts  have  long 
allowed  mercantile  instruments  to  be  expounded  according  to  the  cus- 
tom of  merchants,  who  have  a  style  and  language  peculiar  to  themselves, 
of  which  usage  and  custom  are  the  legitimate  interpreters."  Although 
that  principle  has  been  more  frequently  applied  to  mercantile  iustru- 
ments  than  to  others,  it  is  not  confined  to  them ;  and  if  the  word  "  thou- 


Page  1033. 


Ill',i,lllijll 


ADDING    TERMS    AND    INCIDKNTS. 


339 


Illustnitive  Cust-i 


sand,"  as  applied  to  the  piutiriilar  subject- mutter  of  rubliits,  had,  in  the 
place  where  this  contract  was  made,  a  peculiar  sense,  I  think  that  parol 
evidence  was  admissible  to  show  it.  In  an  action  upon  a  contract  for 
the  sale  of  one  thousand  deals,  it  would,  I  think,  be  com[)etent  to  show 
that  the  word  "thousand"  meant  more  than  it  would  in  its  ordinary 
sense.  I  agree  that  where  a  word  is  defined  by  act  of  Parliament  to 
mean  a  precise  quantity,  the  parties  usinif  that  word  in  a  contract  must 
be  presumed  to  use  it'  in  the  sense  given  to  it  by  the  legislature,  unless 
it  appear  from  other  parts  of  the  contract  that  they  used  it  diffeiently. 
But  that  is  not  the  [)resent  case.  No  specific  meaning  has  been  given 
by  the  legislature  to  the  word  "thousand"  as  applied  to  rabbits,  and 
therefore  it  must  be  understood  according  to  the  custom  of  the  country, 
and  evidence  was  admissible  to  show  what  that  was. 

Taunton,  J. — Words  denoting  weight,  or  measure,  or  number,  must 
undoubtedly  be  understood  in  their  ordinary  sense,  unless  some  specific 
meaning  be  prescribed  to  them  by  statute  or  given  by  custom.  Mercan- 
tile instruments  have  long  been  expounded  according  to  the  usage  and 
custom  of  merchants,  ascertained  by  parol  evidence,  and  I  think,  on  the 
same  principle,  the  term  "thousand,"  which  in  this  lease  is  applied  to 
the  subject  of  rabbits,  may  be  explained  by  the  custom  of  the  country 
to  mean  twelve  hundred,  and  that  parol  evidence  was  admissible  for  this 
purpose. 

Bule  discharged. 


25.  TO  ADD  TERMS   AND    INCIDKNTS  THERETO. 

Cooper  v.  Kank.* 


■^1 


In  the.  Supreme  Court  of  New  York,  Maij,  1833. 


Hon.  Samuel  Nei.sox,  Chief  Justice. 
•'    GiiEKXE  C.  Bronson,  i 

"     ESEK   COWEN, 


'  J  Judges. 


A  contract  for  the  excavation  of  lots  in  a  city,  so  as  to  make  f  hem  conform  to  a  certain  plan, 
was  silent  as  to  whom  should  belong  the  sand  or  other  material  taken  therefrom.  A 
custom  existed,  long  establislied  and  notorious,  that  it  went  to  the  excavator,  and  not 
to  the  owner  of  the  lots.  Held,  that  evidence  of  the  custom  was  admissible  to  explain 
the  contract  of  the  parties. 

This  was  an  action  of  replevin,  tried  at  the  Albany  Circuit,  in  Octo- 
ber, 1835,  before  the  Hon.  Hirajvi  Denio,  then  one  of  the  circuit 
judges. 

•  Reported  19  Wead.  388. 


34U 


TIIEIU    AUMISSIBILITY    TO   EXPLAIN    CONTRACTS. 


Cooper  I'.  Kane. 


iUi 


rill"  ticlion  was  in  detinet,  for  (letainin*;  a  quantity  of  saml  takfii 
fi'om  a  lot  ill  the  city  of  Albany,  lH'l(»ii<;iii<;  to  the  plaintiff,  wliiili  the 
<lefcn<lant  had  excavated  under  a  contract  with  the  plaintiff,  ho  :!•<  to 
make  the  lot  conform  to  a  pnjfile  or  plan  of  the  streets  establisluil  hy 
the  corporation.  The  contract  was  in  writinj^.  The  defendant  was  to 
excavate  the  lot  and  make  the  necessary  embankments  within  a  liniittil 
time,  for  which  he  was  to  be  paid  l)y  the  plaintiff  $180  when  the  work 
was  done.  The  defendant  completed  the  job,  and  was  i»aid  the  stiim- 
lated  price.  Whilst  engajjed  in  tiie  work,  tlie  defendant  placed  a  larj:*; 
quantity  of  sand,  which  was  taken  off  of  the  lot  in  order  to  make  it 
conform  to  the  required  plan,  on  an  adjoining  In*,  not  belonging  to  the 
plaintiff,  and  when  requested  by  the  plaintiff  to  permit  her  to  take  it 
away,  he  refused  such  permission.  For  this  detention  the  action  was 
brought.  There  was  no  stipulation  in  the  contract  as  to  whom  the  sand 
taken  from  the  lot  in  making  the  excavation  should  belong  after  it  was 
taken  off  the  lot.  The  defendant  then  offered  to  prove  a  custom  of 
the  city  of  Albany,  which  had  existed  for  a  great  number  of  years,  and 
was  well  known  and  understood,  that  in  the  excavation  of  lots  the 
material  excavated  belonged  to  the  excavator,  and  not  to  the  ownc-r  of 
the  lot,  unless  there  was  an  express  reservation  in  the  contract  to  the 
contrary.  The  judge  rejected  the  testimony,  and  instructed  the  jury  that 
on  the  evidence  adduced  the  plaintiff  was  entitled  to  their  verdict,  wlio 
accordingly  found  a  verdict  for  the  plaintiff,  with  six  cents  damaiies 
and  six  cents  costs,  and  assessed  the  value  of  the  property  at  SI 57. 
The  defendant  moves  for  a  new  trial.  The  cause  was  submitted  on 
written  arguments. 

C.  M.  Jenkins^  for  the  defendant ;  J.  Holmes,  for  the  plaintiff. 

Nelson,  C.J.  —  I  am  inclined  to  the  opinion  that  the  evidence  of  the 
custom  in  respect  to  contracts  like  the  one  out  of  which  this  action  has 
arisen,  by  way  of  explaining  it,  and  which  was  offered  by  the  defend- 
ant for  that  purpose,  was  admissible.  It  did  not  go  to  vary  any  expH'ss 
or  necessarily  implied  stipulations  between  the  parties  therein  contained, 
but  rather  to  establish  what  amounted  to  a  com])lete  performance  agree- 
ably to  the  presumed  understanding  of  the  parties. 

Mr.  Staukie  says :  '  "  Where  parties  have  not  entered  into  any 
express  and  specific  contract,  a  presumption  nevertheless  arises  that 
they  meant  to  contract  and  to  deal  according  to  the  general  usage, 
practice,  and  understanding,  if  any  su(Ji  exist,  in  relation  to  the  subject- 
matter."  The  same  rul-'  of  evidence  is  also  recognized  by  Phillips;'' 
and  Lord  Kknyon  remarked,  in  Whitnell  v.  Gartham,^  that  evidence  of 


1  2  stark,  on  Ev.,  $$  2S8, 259. 


s  1  Ph.  on  Et.  420, 431. 


I  6  Term  Rep.  398. 


ADDING    TKUMS    AND    INriDKXTS. 


3U 


Illustrfttive  Cnses. 


usaf^t!  was  adini.ssililc  tij  expouiitl  a  privutc  (Ii'lmI  as  wi'll  as  tlu'  kiii<?'s 
charter.  The  right  of  carriers,  dyers,  wliarllngers,  etc.,  to  a  lien  on 
the  goods  intrusted  to  them,  for  tlieir  compensation,  is  frefiucntly  estah- 
iistied  hy  usage.  imU'pendently  of  the  contract.  In  liii.s/iforth  v.  //"'/- 
fifild,^  Lord  Em.eniiohoit.h  pi'iinitted  tlie  (h'fen(huits  (conunon  cariiiTs) 
to  ;j;o  into  proof  of  connuon  usage  to  detain  tlie  goods  for  a  general 
l)alance,  on  the  ground  of  an  implied  agreement  arising  out  of  it 
t)etween  the  parties.  He  observed  that  if  there  be  a  general  usage  of 
trade  to  deal  with  common  carriers  in  this  way,  all  persons  dealing  in  the 
trade  are  supposed  to  contract  with  them  upon  the  footing  of  the  g«Mieral 
practice,  adopting  the  general  lien  into  their  contract.  Lawuk.nck,  J., 
admitted  that  the  lien  must  be  by  contract  lietween  the  parties,  but 
observed  that  usage  of  trade  was  evidence  of  the  contract,  and  if  so 
long  established  as  to  afford  a  presumption  that  it  was  commonly  known, 
it  was  fair  to  conclude  the  particular  parties  contracted  with  reference  to 
it.  In  Kirkman  v.  Shaivcross,^  the  dyers,  dressers,  whisters.  printers, 
etc.,  of  a  neighborhood  held  a  public  meeting,  and  entered  into  an 
agreement  that  they  would  receive  no  more  goods  in  the  way  of  their 
trade  except  on  the  condition  that  they  should  have  a  lien  on  them  for 
a  general  balance,  which  was  extensively  published.  The  court  held 
that  any  person  who  delivered  goods  to  them  after  notice  must  be 
deemed  to  have  assented  to  the  terms  prescribed ;  and,  as  we  have  seen, 
notice  might  be  inferred  from  the  general  notoriety  of  che  terms  thus 
pul)lished. 

Now,  in  this  case,  there  is  simply  an  agreement  to  excavate  the  earth 
in  a  certain  street  and  to  make  the  necessary  embankment  according 
to  a  map  of  the  corporation,  for  a  given  compensation.  Nothing  is 
said  about  the  surplus  earth :  where  it  is  to  be  laid,  or  what  is  to  be  done 
with  it.  Would  it  be  a  workman-like  execution  of  the  contract  to  »^ile  it 
upon  the  adjacent  bank?  Or  may  the  contractor  dispose  of  it  as  he 
sees  fit,  and  as  most  convenient  and  profitable  to  himself?  It  appears 
to  me  the  solution  of  these  questions  may  very  well  be  referred  to  com- 
mon usage  in  such  cases,  if  any  exist ;  and  that  if  it  should  be  proved, 
as  said  by  Lawrence,  J.,  "it  is  fair  to  conclude  the  particular  parties 
contracted  with  reference  to  it."  This  usage  may  often  have  a  very 
important  influence  upon  the  minds  of  the  parties,  as  exemplified  in 
this  case,  for  the  value  of  the  materials  which  the  plaintiff  has  recov- 
ered nearly  equals  the  price  of  the  job.  If  in  fact  the  usage  exists, 
and  the  contract  was  made  in  reference  to  it,  serious  injustice  must  be 
the  result  of  upholding  the  verdict. 

New  trial  granted. 


>  6  East,  S19. 


«  6  Term  Rep.  U. 


1 .  1: 


342 


THEIR   ADMISSIBILITY    TO    EXPLAIN   OONTHACTS. 


Hnmfrey  v.  Dale. 


!  '1  , 1 


26.  SAME   PRINCIPLE. 

HuMFREY  V.  Dale.* 

In  the  Court  of  Queen's  Bench,  Hilary  Term,  1857. 

Rt.  Hon.  John,  Lord  Campbell,  Chief  Justice. 
Sir  John  Taylou  Coleridge,  Kt., 

•'     WiLI  lAM   WlGHTMAN,  Kt., 

"   William  Erle,  Kt., 

"    Charles  Crompton,  Kt., 


■  Judges. 


iff 


If, 


D'  fondants,  brokers,  being  employed  by  P.  to  purchase  oil,  bigncd  a  note  as  follows:  "Sold 
this  day  for  Messrs.  T.,"  plaintiif's  brokers,  "  to  our  principals,  ten  tons  of  linseed  oil," 
etc.,  "  quarter  per  cent  brokerage  tO  "  defendants.  This  note  defendants  delivered  to 
Messrs.  T.  Defendants  did  not  disclose  tlie  name  of  their  principal,  S.,  who  berarae 
insolvent  and  did  not  accept  the  oil.  Plaintiff  then  sued  defendants  for  not  aoi-.eptinf; 
the  oil,  liwing  the  8ale  as  by  himself  to  defendants.  Defendants  denied  the  contract.  ()ii 
the  trial,  plaiLtiflf  proved  a  custom  in  the  trade  that  when  a  broker  purchased  without 
disclosing  the  name  of  his  principal,  he  was  liable  to  be  looked  to  as  purchaser.  Held, 
that  evidence  of  the  custom  was  admissible,  as  not  contradicting  the  written  instru- 
ment, but  explaining  its  terms  or  adding  a  tacitly  implied  incident,  and  that  the  uciion 
lay. 

The  declaration  alleged  that  defendants  bargained  for  and  bought  of 
the  plaintiff,  who,  at  the  request  of  the  defendants,  sold  to  them  a  large 
quantity,  to  wit,  ten  tons,  of  linseed  oil,  at  and  for  a  certain  price,  to 
wit,  £44  per  ton,  real  tare  and  usual  draft,  to  be  free  deli'v'^ered  duiia,' 
the  last  fourteen  days  of  Fobruaiy,  a.  d.  1856,  and  to  be  paid  for  in 
ready  money,  allowing  two  and  one-half  per  cent  discount.  And 
although  the  time  for  the  delivery  and  acceptance  of  the  said  goods. 
pui'suant  to  the  said  contract,  had  elapsed  before  the  commencement  of 
this  suit,  and  the  plaintiff  was  ready  and  willing,  and  offered  to  deliver 
the  said  goods  to  the  defendants,  pursuant  to  the  said  contract,  and 
duly  performed  all  conditions,  etc. ,  yet  defendants  did  not,  nor  would 
accept  or  pay  for  the  said  goods,  or  any  part  thereof,  pursuant  to  the 
said  c;'  itract,  but  wholly  neglected,  etc. 

Plea :  That  defendants  did  not  bargain  for  and  buy  of  plaintiff  the 
said  linseed  oil,  or  make  the  said  contract  as  alleged.     Issue  thereon. 

On  the  trial  before  Coleridge,  J.,  at  the  London  Sittings  in  Eafiter 
Term,  1857,  the  following  facts  appeared,  as  stated  in  the  judgment 
afterwards  delivered :  — 

••  The  action  was  for  the  price  of  linseed  oil  alleged  to  be  bargained 
und  sold  by  the  plaintiff  to  the  defendants,  and  not  accepted  by  them. 
The  plea  denied  the  bargain  and  sale. 

•  Reported  7  £1.  ft  Bl.  268. 


I"? 


ADDING    TERMS    AND    INCIDENTS. 


;ua 


lUustriilive  Cases. 


"The  plaintiff  had  employed  Thomas  &  Moore,  brokers,  to  sell  the 
oil  for  him.  One  Shenk  was  a  buyer  of  oils,  and  had  employed  the 
defendants,  who  were  brokers,  to  buy  for  him.  The  dealing  in  question 
Avas  between  the  brokers;  and  after  proof  of  the  facts  now  stated,  in 
order  to  prove  the  specific  contract,  the  plaintiff  put  in  the  two  following 
notes. 

First:  — 

*"  75  Old  Broad  St.,  Londox,  14th  August.  1855. 

"  *  Sold  this  day,  for  Messrs.  Thomas  &  Moore,  to  our  principals,  10 
tons  of  linseed  oil,  of  merchantable  quality,  at  £44  per  ton,  real  tare 
and  usual  draft,  to  be  free  delivered  during  the  last  14  days  February 
next,  and  paid  for  in  ready  money,  allowing  '2]  per  cent  discount. 

"  '  Dale,  Mouuan  &  Co.,  Brokers. 

•' '  Quarter  per  cent  brokerage  to  D.,  M.  &  Co.' 

•'This  note  was  signed  as  above,  and  sent  by  the  defendants  to 

Thomas  &  Moore. 

Second :  — 

"'London,  14th  August,  1855. 

"  '  Sold  to  Dale,  Morgan  &  Co.,  for  account  of  Mr.  Charles  Ilumfrey, 
10  tons  of  linseed  oil,  of  merchantable  quality,  at  £44  per  ton,  real  tare 
and  usual  draft,  to  be  free  delivered  during  the  last  14  days  February 
next,  and  paid  for  in  ready  money,  allowing  2^  per  cent  discount. 

'"Thomas  &  Mooiuc,  Brokers. 

"  'Quarter  per  cent  brokerage  to  D.,  M.  &  Co.,  a  half  to  us.' 

"And  the  plaintiff  further  gave  in  evidence,  without  objection,  that, 
according  to  the  usage  of  the  trade,  whenever  a  broker  purchased  witli- 
out  disclosing  the  name  of  his  principal,  he  was  liable  to  be  looked  to  as 
the  purchaser.  In  this  case,  the  defendants  had  not  disclosed  their 
principal's  name  till  an  unreasonable  time  after  the  contract  made,  and 
when  he  had  become  insolvent." 

On  this  evidence,  the  counsel  for  the  defendants  contended  that  the 
contract  between  the  parties  as  laid  in  the  declaration  was  not  proved. 
A  verdict  was  taken  for  the  plaintiff,  leave  being  reserved  to  move  for  a 
nonsuit. 

In  the  same  tc.m,  Manisty  obtained  a  rule  nisi  for  a  nonsuit,  on  the 
following  grounds:  "  F'irst,  that  there  was  no  evidence  of  the  alleged 
contract  of  sale  nd  purchase ;  second,  that  evidence  of  the  alleged  cus- 
tom is  not  admissible;  "  or  for  a  new  trial  on  the  ground  of  surprise, 
which  was  not  insisted  upon  in  argument. 

In  last  term,  Pigott,^  Serjt.,  and  Kemplay,  showed  cause. — There 

'  November 4, 1857,  before  Lord  Cnir-pbc!!,  C.  J.;  Coleridge,  Wightnian,  and  Slrlc,  JJ. 


m^ 


:UU 


If: 


344 


THEIR   ADMISSIBILITY   TO    EXPLAIN    CONTKACTS. 


Ilnmfrev  r.  Dale, 


|I    i- 


was  evidence  m-akiiiG;  tlie  defeiulauts  lial)le  as  purchasers.  Tlic  note 
signed  by  thom  indeed  descriJ)es  tlieni  us  selling-  for  Thomas  &  Moore, 
but  it  goes  on  to  state  the  sale  to  be  made  "  to  our  principals;  "  thev 
are,  therefore,  on  the  face  of  the  note,  agents  for  undisclosed  |)riiicip!ils. 
who  are  the  purcluisers  ;  and  this  renders  thorn  personally  liable,  tlioiiirli 
the  principals  might  also  l»e  sued.'  And  that  this  is  consislent  witli  the 
form  of  the  document  appears  from  PenwU  v.  AlcKundci'.'  If  this  he 
not  enough,  on  general  principles,  to  fix  the  liability  on  the  defendants,  at 
any  rate  the  usage  does  so.  An  objection  is  now  made  to  the  admis- 
sibility of  the  evidence  of  the  usage.  But  it  was  given  not  to  contra- 
dict the  terms  of  the  contract,  but  to  interpret  its  meaning  as  Ijctween 
the  parties.  Mr.  Smith,  in  his  note  on  Thomson  v.  Davenport,'^  says: 
"Some  diiiiculty  has  been  thought  to  surround  the  subject-matter  of 
this  note  (namely,  the  creditor's  right  of  election),  arising  out  of  that 
inflexible  rule  of  the  law  of  evidence  commented  on  in  Wiggh'.sworth  v. 
Dallison,^  viz. :  that  the  terms  (^f  a  written  contract  cannot  be  qiialificil 
or  contradicted  b}-  parol  testimony.  It  has  been  said,  if  A.  contract  in 
writing  without  naming  his  principal,  so  that  he  api>ears  upon  the 
writing  to  be  himself  the  principal,  does  not  a  creditor  wiio  seeks  to 
show  that  while  thus  professedly  contracting  for  himself  he  really  con- 
tracted fox*  a  principal,  endeavor  to  infringe  this  rule  of  evidence  by 
adding  to  the  written  contract  a  new  term  at  variance  with  tiie  written 
terms?  This  question,  it  is,  however,  apprehended,  must  receive  differ- 
ent answers  upon  different  occasions  ^answers  varying  according  to  the 
object  with  which  it  is  sought  to  introduce  the  parol  testimony,  which 
it  is  submitted  never  can  be  heard  for  the  i)urpose  of  charging  the 
agent,  but  may  always  be  so  for  that  of  charging  the  principal."  Tiiat 
view  is  fully  confirmed  by  the  judgment  in  Iliijgins  v.  Senior^'  where 
Smith's  note  is  referred  to.  Traeman  v.  Loder^  may  be  citetl  as 
'^ppt)sed  to  this.  The  marginal  note  there  states  that  "evidence  wjis 
offered  by  defiMidant  of  a  custom  in  the  tallow  trade  that  on  such  con- 
tracts as  tlie  above,  '  a  party  might  reject  the  undisclosed  principal,  and 
look  to  tlie  broker  for  the  completion  of  the  contract.'  IMd,  inadini:^- 
sible,  as  varying  a  written  contract."  There  the  broker,  acting  for  hotli 
parties,  signed  a  bought- note  beginning,  '' Bought  for  T.,"  the  plaintiff, 
and  a  sold-note  beginning,  ' '  Sold  for  H. , "  who  rei>resented  the  defendant, 
*'  to  my  i)rincipal3,"  not  named  ;  and  the  attempt  was  to  get  rid  of  the 


'  Thomson  v.  Davenport,  9  Barn.  &  Cross. 
78;  1  Smith's  Ld.  Cas.  (4th  ed.)  297,  note; 
.Story  on  Ag.,  §  207. 

2  3  El.  &  Bl.  '2S3. 

■■>  3  Smith's  Ld.  Caa.  (4th  ed.)  ;)03. 


«  1  E1.&B1.50;  1  Smith's  Ld.Ca8.  (4th  ed.) 
4ttO;  1  Doug.  201. 
>  8  Mee.  &  W.  834. 
•  11  Ad.  ft  E.  089. 


ADDING   TERMS    AND    INCIDENTS. 


34') 


• 


Illiistrative  Cases. 


:;as.  (4tb  eii.) 


liability  of  the  defendant  as  principal  vendor.  It  was  lieM  t!i:it  this 
could  not  be  done ;  but  it  is  liere  contended  only  that  the  evidence  may 
be  given  to  fix  the  principal,  which  accords  witli  Mr.  SMrru's  rule,  and 
does  not  contradict  Trmmaii  v.  Loder.  So,  in  M'Ujce  v.  Atk!»mn,^ 
wliere  the  broker  was  held  lial)le,  the  evidence  rejected  was  not  of  a 
custom  charginty  the  agent.  In  Carr  v.  Jw.k^oti.'  it  was  held  that  evi- 
dence miglit  be  given  to  show  that  a  party  describing  himself  in  a 
written  contract  as  agent  was  in  fact  a  principal.  So,  conversely,  in 
Schmaltz  v.  Aceri/,'*  it  was  held  that  a  i)arty  who  had  signed  a  written 
contract  expressing  that  he  acted  for  another,  might  still  prove  himself 
to  be  principal.  The  defendants,  therefore,  are  here  liable ;  and  they 
are  liable  to  the  plaintiff,  who  has  a  right  to  sue  on  the  contract  made  by 
his  brokers,  if  the  state  of  accounts  between  the  other  parties  be  not 
disturbed  thereby. 

Manisty^  contra.  — The  note  signed  by  the  defendants  is,,  at  any  rate, 
not  in  the  ordinary  form  of  a  contract  between  themselves  and  the  plain- 
tiff ;  and  it  has  been  found  necessary  in  the  argument  on  the  other  side 
to  treat  it  as  a  contract,  not  for  sale  for  Thomas  &  Moore,  l)ut  for  pur- 
chasing on  behalf  of  the  unnamed  principals.  But,  so  understood,  it  is 
not  a  contract  of  purchase  by,  or  sale  to,  the  defendants.  If  the  state- 
ment of  the  sale  to  the  principals  be  untrue,  the  defemlants  are  liable  to 
an  action.  [Coi.kuidue,  J.  —  By  "  principals,"  must  we  not  understand 
the  principals  in  this  particular  contract?]  If  evidence  may  be  given, 
as  no  doubt  it  may,  as  to  who  the  principals  are,  that  shov  j  with  whom 
the  contract  was  made ;  if  it  could  not,  no  contract  at  all  would  be 
proved.  It  is  true  that  a  part\'  who  takes  the  broker  as  the  contractor, 
intending  so  to  do,  cannot  afterwards  look  to  the  pritu-ipal ;  but  here 
the  intention  appears  to  have  been  to  treat  the  contract  as  made,  not 
between  the  plaintiff  and  the  defendants,  but  as  l)etvveen  Thomas  &, 
Moore  and  the  principals  of  the  defendants.  In  Thomson  v.  Daoenport,* 
and  other  cases  of  that  class,  the  cpiestion  was  as  to  resorting  to  the 
principal,  which,  it  was  held,  the  other  party  to  the  contract  was  entitled 
to  do.  Here  the  principals  are  the  i)arties  expressly  niad(^  I'able.  The 
evidence  of  the  custom,  if  admissible,  would  show  a  different  contrar't, 
and  would  contradict  the  language  of  the  written  instrument.  If  the 
'  ontract  was  with  the  defemlants  as  purchasers,  it  was  a  contract  not 
shown  by  any  memorandum  in  writing;  and,  therefore,  by  the  Statute 
of  Frauds,  it  cannot  be  enforced. 

Cur.  adu.  vult. 


■U 


'  2  M(!e.  A  W.  440. 
«  7  Exch.  3*J. 


»16Q.  B.  »{55. 

•  aUiirii.  A  Cress.  7S. 


1     i' 


\l'\ 


346 


THEIi;    ADMISSIBILITY   TO   EXPLAIN    CONTRACTS. 


Huinfrey  v.  Dale. 


i^S 


.ft 


Lord  C.vMi'BELL,  C.  J.,  now  delivered  the  judgment  of  the  ccnirt. 

This  was  a  rule  t(^  cuter  a  nonsuit,  and  the  facts  upon  which  the  ques- 
tion to  be  decided  arises,  appear  to  be  the  following.  [His  lonisliip 
then  stated  the  facts  as  ante.'] 

It  was  then  objected  that  upon  this  state  of  facts  there  was  no  evi- 
dence of  any  contract ;  but  if  of  anj',  that  it  was  of  a  contrucl  lictwccn 
Thomas  &  ]Moore  and  the  defendants,  not  of  a  contract  bi'lvvi-on  the 
plaintiff  and  them.  And  upon  the  argument  the  admissibility  uf  the 
evidence  of  usage  was  debated ;  upon  which,  therefore,  it  will  be  neces- 
sary for  us  to  express  our  opinion. 

Upon  consideration,  we  think  that  there  is  no  foundation  for  either 
objc(!tion.  Parol  evidence  was  clearly  admissible  to  show  the  circum- 
stances under  which  the  contract  was  made,  and  the  relation  of  the 
plaintiff  and  defendtuits  to  it  and  to  eacli  other  in  respect  of  it.  It  was 
shown  then,  without  the  help  of  usage,  that  the  plaintiff  was  the  owner 
of  the  oil,  and  that  Thomas  &  Moore  were  employed  ]5y  him  to  sell  it. 
By  the  note  first  stated,  the  defendants,  signing  as  brokers,  sfty  thut 
they  have  sold  for  Thoma;_<  &  Moore  to  their  own  principals,  whom 
tliey  do  not  name,  but  for  whom  they,  by  necessary  imphcailoii, 
say  that  they  have  bought.  It  cannot  be  doubted  that  althouirh 
thoy  say  in  the  note  they  have  sold  for  Thomas  &  Moore,  tlie  phiintiff 
might  show  that  Thomas  &  Moore  were  only  his  agents,  and  that  he  was 
in  fact  the  principal  for  whom  the  defendants  sold,  and  with  whom,  if 
with  any  one,  as  the  seller,  the  contract  wos  made.  But  the  defendants 
also  state  that  they  have  bought ;  for  they  say  they  have  sold  to  a  jjevMiu 
who  is  their  principal,  which  must  mean  their  principal  as  buyei'  in  that 
transaction.  Whetlier  they  had  authority  from  him  so  as  to  bind  liini 
by  their  signature  is  not  now  the  question  as  against  him.  but  as  against 
themselves  ;  and  they  cannot  deny  that  they  have  made  such  purchase  as 
they  themselves  state.  We  have,  then,  as  the  case  now  stands,  char 
evidence  of  a  contract  of  bargain  and  sale  between  the  plaintiff  as  tlie 
seller  and  the  undisclosed  principal  of  the  defendants. 

The  only  remaining  question  is,  having  stated  a  purchase  for  a  third 
jterson  as  principal,  is  there  evidence  on  which  they  themselves  can  he 
made  liable?  Now,  neither  collateral  evidence  nor  the  (evidence  of  a 
usage  of  trade  is  receivable  to  prove  anything  which  contradicts  the 
tenor  of  a  written  contract;  but,  subject  to  this  condition,  botii  may  l)e 
received  for  certain  purposes.  To  use  the  language  of  Mr.  Pnn.i-irs,' 
"  F^vidence  of  usage  has  been  admitted  in  the  foregoing  instance  of  con- 
tracts relating  to  transactions  of  commerce,  trade,  farming,  or  otiier 


I  2  Ph.  &  Arn.  on  Kv.  (10th  ed.)  415. 


ADDING   TERMS    AND    INCIDENTS. 


347 


Illustrative  Cases. 


business,  for  the  purpose  of  clefming  what  would  otherwise  be  inclolinitc, 
or  to  interpret  a  peculiar  term,  or  to  explain  what  was  obscure,  or  to 
.isocrtain  wh.at  was  equivocal,  or  to  annex  particulars  and  incidents 
which,  although  not  mentioned  in  the  contracts,  were  connected  with 
them,  or  with  the  relations  growing  out  of  them,  and  the  evidence  in 
Mich  cases  is  admitted  with  the  view  of  giving  effect,  as  far  as  can  be 
(lone,  to  the  presumed  intention  of  the  parties."  Now,  here  the  plaintiff 
(lid  not  seek  by  the  evidence  of  usage  to  contradict  what  the  tenor  of 
the  note  primarily  imports,  namely :  that  this  was  a  contract  which  the 
defendants  made  as  brokers.  The  evidence,  indeed,  is  based  on  this ; 
the  usage  can  have  no  operation  except  on  the  assumption  of  their 
hanng  so  acted,  and  of  there  having  been  a  contract  made  with  their 
principal.  But  the  plaintiff,  by  the  evidence,  seeks  to  show  that  accord- 
ing to  the  usage  of  the  trade,  and  as  those  concerned  in  the  trade  under- 
stand t'.iC  words  used,  they  imported  something  more,  namely :  that  if 
the  bu^'ing  broker  did  not  disclose  the  name  of  his  principal,  it  might 
become  a  contract  with  hira  if  *he  seller  pleased.  Supposing  this  inci- 
dent liad  been  expressed  on  tlie  face  of  the  note,  there  would  have  been 
no  objection  to  it  as  affecting  the  validity  of  the  contract,  for  the  effect 
of  it  would  only  have  been  that  the  sale  might  be  treated  b}^  the  vendor 
as  a  sale  to  the  broker  unless  he  disclosed  the  name  of  hi'=;  principal ;  if 
he  (lid  that,  it  remained  a  sale  to  the  principal  —  assuming,  of  course,  the 
broker's  authority  to  bind  him.  The  case  would  then  be  analogous  to 
that  of  the  delivery  of  goods  on  a  contract  of  "sale  or  return,"  where 
the  goods  pass  only  conditionally  —  that  is,  unless  the  buyer,  within  the 
limited  or  a  reasonable  time,  if  none  be  limited,  exercises  the  option  of 
returning  them ;  if  he  does,  the  contract  falls  to  the  ground  and  is 
defeated,  as  if  it  had  never  been ;  if  he  does  not,  it  takes  effect  from  the 
time  when  it  was  made. 

Whether  this  evidence  be  treated  as  explaining  the  language  used,  or 
adding  a  tacitly  implied  incident  to  the  contr.act  beyond  those  which  are 
expressed,  is  not  material.  In  either  point  of  view  it  will  be  admissible, 
unless  it  labors  under  the  objection  of  introducing  something  repugnant 
to  or  inconsistent  with  the  tenor  of  the  written  instrument.  And  upon 
consideration  of  the  sense  in  which  that  objection  must  be  understood 
with  reference  to  this  question,  we  think  it  does  not. 

In  a  certain  sense,  every  material  incident  which  is  added  to  a  written 
contract  varies  it,  makes  it  different  from  what  it  appeared  to  be,  and 
so  far  is  inconsistent  with  it.  If  by  the  side  of  the  written  contract 
without,  you  write  the  same  contract  with  the  added  incident,  the  two 
would  seem  to  import  different  obligations  and  be  different  contracts. 


348 


THRFR    ADMISSIBILITY   TO    EXPLAIN    CONTRACTS. 


Iluinfrey  v.  Dale. 


'   I 


um 


To  take  a  faniiliar  instaiifo  Ity  way  of  illustration:  On  the  face  <jf  a  l)ill 
of  exeliange  at  tlireo  months  after  date,  the  acceptor  would  lu'  taken  to 
bind  himself  to  the  payment  precisely  at  the  end  of  the  three  nioiitlis* 
but  by  the  custom  he  is  only  l)ound  to  do  so  at  the  end  of  the  days  of 
grace,  which  vary,  accordin<>;  to  the  country  in  which  the  bill  is  made 
l)ayable,  from  three  up  to  fifteen.  The  trutL  is,  that  the  principle  oii 
which  the  evidence  is  admissib''^  is  that  the  parties  have  not  set  down 
on  paper  the  whole  of  their  eonti'act  in  all  its  terms,  hut  those  oalv 
which  were  necessary  to  be  determined  in  the  partictdar  case  by  sp('eitl(; 
agreement,  and  which,  of  course,  might  vary  infinitely,  leaving  to  impli- 
cation and  tacit  understanding  all  those  general  and  unvar3'ing  incidents 
which  a  uniform  usage  would  annex,  and  according  to  which  tiiey  must 
in  reason  be  i  ■:  iod  to  contract  unless  they  expressly  exclude  them. 

To  fall  witir  -      vception.  therefore,  of  repugnancy,  the  incident 

nnist  be  such  as,  if  expressed  in  the  written  contract,  would  make  it 
insensible  o-  inconsistiMit.  Thus,  to  warrant  bacon  to  be  "  prime 
singed,"  adding,  '  'at  11:5  uo  say.  slightly  tainted,"  '  or  to  insure  all  the 
boats  of  a  ship,  and  add,  '  that  is  to  say,  all  not  slung  in  the  quarter,"  '^ 
and  other  cases  of  the  same  sort  scattered  through  the  books,  would  be 
instances  of  contracts  in  which  both  the  two  parts  could  not  have  full 
<,'ffect  given  to  them  if  written  down ;  and,  therefore,  when  one  part 
only  is  expressed,  it  would  be  unreasonable  to  supj^ose  that  the  parties 
intended  to  include  the  other  also.  Without  repeating  ourselves,  it 
will  be  found  that  the  same  reasoning  applies  wdiere  the  evidence  is  used 
to  explain  a  latent  ambiguity  of  language. 

But  here,  if  all  that  the  plaintiff  contends  for  had  been  expressed, 
the  defendants  would  have  contracted  thus:  "We  buy  for  our  princi- 
pal ;  but  if  we  do  not  disclose  his  name  within  a  reasonable  time,  we 
agree  that  you  may  treat  us  as  the  purchasers."  And  it  cannot  be  said 
that  the  latter  branch  is  inconsistent  with  the  former,  any  more  than  the 
power  to  return,  subject  to  which  the  goods  pass,  is  inconsistent  with 
their  passing.  There  is  a  case  of  Byivater  v.  Richardson,^  which  illus- 
trates this.  It  was  an  action  of  deceit,  for  the  breach  of  a  warranty  of 
soundness  in  the  sale  of  a  horse.  The  warranty  was  in  writing,  abso- 
lute and  unconditional  in  its  form,  and  the  horse  was  unsound.  Yet  it 
was  held  an  available  defence  to  show  that  by  a  rule  of  the  repository 
at  which  the  horse  was  sold,  known  to  the  plaintiff,  all  warranties  there 
given  were  to  be  in  force  only  until  twelve  at  noon  oa  the  day  follomng 


b  4 


'  Yates  V,  Pym,  6  Tntin.  4>fl. 
'■'  Blackett  I'.  Uoynl  Exch.iiiga  A^^sur.  Co.,3 
Cromp.  <%  J.  244 ;  post,  Chap.  V. 


»  1  Ad.  A  E.  SOS. 


ADDING    TERMS    AND    INCIDENTS. 


349 


Illu.strativi'  Cases. 


the  sale,  unless  meantime  a  notice  of  the  unsouiulness,  with  a  certiiicate 
from  a  surgeon,  was  delivered  at  the  oflice.  Here  the  rule,  known  to 
the  parties,  is  exactly  analogous  to  the  usage  of  ti-ade.  Tlu>  warranty 
did  not  in  its  terms  import  that  it  was  binding  for  all  time,  exclusively 
of  the  rule.  It  was  not,  theref(jre,  inconsistent  with  those  terms  to 
import  a  limitation  of  time ;  and,  by  virtue  of  the  rule,  it  was  held  that 
the  parties  had  implicitly  imported  it.  Browne  v.  Bi/rne  ^  has  been  so 
lately  decided  by  us,  and  we  there  expressed  ourselves  so  fully  on  this 
point,  that  we  need  do  no  more  than  refer  to  it.  But  our  brother 
Piyott,  in  showing  cause  against  the  rule,  cited,  for  the  purpose  of  dis- 
tinguishing it,  the  case  of  Trueman  v.  Loder;  ^  and  it  is  certainly  a 
difficulty  in  his  way,  not  as  to  the  decision  itself,  which  is  quite  con- 
sistent with  our  present  observations,  but  in  respect  of  a  collateral 
matter  there  said  to  have  been  determined.  That  was  an  action  for 
non-delivery  of  tallow.  The  sale  was  effected  by  a  broker,  one  Wool- 
ner,  acting  for  both  parties,  and  signing  both  the  bought  and  sold  notes. 
In  the  former  the  purchase  was  described  to  be  for  Trueman  &  Cooke. 
the  plaintiffs;  in  the  latter  the  sale  was  expressed  to  be  "for  Mr. 
Edward  Higginbotham,  to  my  principals;"  and  the  main  struggle  in 
the  case  was  to  make  the  defendant  liable  as  trading  under  the  name 
and  throyigh  the  instrumentality  of  Higginbotham ;  and  there  could  be 
no  doubt  of  the  soundness  of  the  principle  on  which  that  might  be  done, 
if  the  facts  bore  it  out.  But  in  the  judgment  it  is  stated  that  the 
defendant,  on  the  trial,  sought  to  put  this  question:  "  whether  it  was 
not  a  custom  in  the  tallow  trade  that  under  such  contracts  a  party  may 
reject  the  undisclosed  principal,  and  look  to  the  broker  for  the  com- 
pletion of  the  contract,"  and  that  this  question  was  not  allowed  to  be 
put,  which  ruling  the  court  confirms.  How  this  question  could  have 
any  bearing  on  the  matter  in  issue,  where  the  contract  apparently  dis- 
closed both  principals,  and  where  the  plaintiff  was  seeking  to  enforce  it 
against  a  disclosed  principal,  —  for  such,»as  to  the  present  point,  Loder 
must  be  taken  to  have  been,  under  another  name,  —  it  is  certainly  dilfl- 
cult  to  see ;  and  this  difficulty  is  pointed  out  in  the  judgment.  In  it 
the  same  principle  was  admitted  on  which  the  plaintiff  here  relies,  but 
it  was  thought  in  the  application  of  that  principle  that  the  term  in 
question  sought  to  be  annexed  to  the  contract  would  be  inconsistent 
with  its  tenor.  "We  do  not  cite  Hodgson  v.  Davies,'^  as  a  legal  decision, 
to  lie  opposed  to  this.  Lord  Denman  dealt  with  it  in  the  judgment  in 
question,  and  showed  how  little  it  can  be  supposed  to  carry  with  it  of 


>  8  El.  &  Bl.  703. 
•  U  Ad.  &  £.  689. 


*  S  Camp.  SSQl 


I    !i 


TiOO 


THKIK    AUMISJJIIULITV    TO    KXI'LAIN    CONTUACr.S. 


Humfroy  v.  Dale. 


tilt'  weight  of  Lord  Em-enbi^kougu's  opinion.  But  we  refer  to  it  in  con- 
nection with  TniPiimn  v.  Loder,  because  both  cases,  we  think,  disclosi- 
how  entirely  the  ininds  of  lawyers  are  under  a  different  intluonco  fruni 
that  which,  in  spite  of  thorn,  wiil  always  influence  the  practice  of  tradi'is, 
which  practice  creates  the  usages  of  trade.  The  former  desire  rei- 
tainty,  and  would  have  a  written  contract  express  all  its  terms,  uni 
desire  that  no  parol  evidence  beyond  it  should  be  receivable  ;  but  tniT- 
chaiits  and  traders,  with  a  multiplicity  of  transactions  press! n<r  on 
them,  and  moving  in  a  narrow  circle,  and  meeting  each  other  daily, 
desire  to  write  little,  and  leave  unwritten  what  they  take  for  granted  in 
every  contract.  lu  spite  of  the  lamentations  of  judges,  thoy  will  con- 
tinue to  do  so ;  a^id  in  a  vast  majority  of  cases,  of  which  courts  of  law 
hear  nothing,  they  do  so  without  loss  or  inconvenience,  and  upon  the 
whole  they  find  this  mode  of  dealing  advantageous,  even  at  the  risk  of 
occasional  litigation.  It  is  the  business  of  courts  reasonably  so  to 
shape  their  rules  of  evidence  as  to  make  them  suitable  to  the  h!il)its  of 
mankind,  and  such  as  are  not  likely  to  exclude  the  actual  facts  of  the 
dealings  between  parties  when  they  are  to  determine  on  the  contro- 
versies which  grow  out  of  them.  It  cannot  be  doul»ted  in  the  present 
case  that  in  fact  this  contract  was  made  with  the  usage  understood  to 
be  a  term  in  it.  To  exclude  the  usage  is  to  exclude  a  material. term  of 
the  contract,  and  must  lead  to  an  unjust  decision. 

Of  course  this  could  be  no  reason  for  a  decision  contrary  to  authority, 
but  we  think  any  one  who  reads  the  judgment  of  the  court  in  Trmman 
V.  Loder  ^  with  attention  will  perceive  how  much  it  was  influenced  by  :i 
feeling  of  the  supposed  inconvenience  of  receiving  any  parol  evidence 
in  the  case  of  a  written  contract.  And  as  it  was  not  necessary  to  the 
decision  of  the  case  then  before  the  court,  we  are  not  bound  by  it  now ; 
and  we  did  not  hold  ourselves  bound  by  it  in  the  case  of  Browne  v. 
Byrne,^  when  it  was  brought  to  our  notice. 

For  the  reasons  we  have  given,  we  are  of  opinion  that  the  evidence 
was  receivable,  and  that  the  rule  to  enter  a  nonsuit  should  be  dis- 


charged. 


Rule  dmiiarged. 


1  11  Ad.  &  K.  589. 

S3  i:l.  &  B1.703. 

s  The  iuagment  was  afterwards  affirmed 


In    the  Kxcbequer  Chambsr,  £1.  Bl.  A  Kl. 
lOM. 


INTERl'RETATION    OF    WILLS. 


.'Jol 


Illustrative  Cases. 


27.    TO   INTKRPRET   WILLS. 
RyRRSS    V.  WlIKKLKR.* 

In  the  Supreme  Court  of  Neiv  York.  October,  1839. 
Hon.  S.vMtTKL  Nki.sox,  Clnef  Justice. 

"        GUKKXK    C.    BliONSOX,  )    ,    , 

«*     EsKK  Cowan,  )       •' 

A  testator  gave  to  certain  devisees  "all  my  buck  lands."  ffeld,t\\nt  parol  evidence  wa» 
admissible  to  designate  the  premises,  as  l)y  sliowing  tliat  ceriaiii  lamls  uwru'd  by  him 
were  usually  known  by  that  description  to  him,  and  among  his  family  and  neislibors. 

Thls  was  an  action  of  ejeetinoiit.  triod  at  the  Yates  Circuit  in  Decem- 
ber, 183S,  before  the  lion.  D.vniki.  Moski.y,  one  of  tlie  circuit  ju(l;j;es. 

The  plaintiffs  claimed  to  recover  one  hundred  and  nine  acres  of  hmd 
.situated  in  the  town  of  Milo.  in  the  county  of  Yates,  tinder  a  devise 
in  the  last  will  and  testament  of  Gozen  Ryerss,  of  Richmond,  in  this 
State,  bearino-  date  the  21st  of  October,  IHOO,  in  these  words:  ''  Item: 
I  give  and  beqneatli  all  mj"  back  lanch  to  my  grandchildren  iioav  living,  tind 
to  those  that  may  [be]  born  hereafter,  share  and  share  alike  in  severalty, 
each  to  receive  his  or  her  share  as  they  respectively  become  of  age,  and 
to  their  heirs  and  assigns  forever."  By  previous  devises  in  the  same 
will  he  had  given  sundry  parcels  of  real  estate,  sittiate  in  the  county  of 
Richmond,  to  a  son.  daughter,  and  grandchild.  The  plaintiffs  proved 
that  the  testator,  Gozeu  Ryerss,  was  the  owner  of  a  tract  of  two  thou- 
sand four  hundred  or  two  thousand  six  hundred  acres  of  land  in  the 
vicinity  of  the  court-house  in  Yates  County ;  that  these  lands  were 
called  by  the  testator  his  b(tck  lands,  and  were  txlso  so  caUed  and  known 
by  his  family  and  neighl)ors  on  Staten  Island.  T'he  witness  who  proved 
this  fact  testified  that  his  father-in-law,  not  the  testator,  who  also 
resided  on  Staten  Island,  and  himself,  whilst  he  resided  there,  owned 
lands  in  the  western  part  of  this  State,  and  that  the\^  also  called  their 
lands  back  laiifh.  The  whole  of  this  evidence  in  relation  to  the  name 
by  which  these  lands  were  known,  and  particularly  as  to  the  declarations 
of  the  testator  design.iting  the  lands  as  back  lands,  was  objected  to  by 
the  defendant's  counsel,  but  the  objection  was  overruled.  The  plaintiffs 
were  nine  in  number,  and  the  declaration  contained  nine  counts.  The 
sixth  count  was  in  the  names  of  G-oz-mi  Adrian  Ryerss  and  Thomas 
Baxter,  claiming  the  whole  of  the  premises  in  fee.  There  was  evidence 
adduced  to  show  title  in  all  the  plaintiffs  named  in  the  declaration  as 

*  Reported  22  Wend.  U-*. 


'■:( 


'U: 


H'     ^h^ 


352 


THEIR   ADMISSIBILITY    TO    EXPLAIN    CONTRACTS. 


Rvtrss  r.  Wht'eler. 


M 


(lorivccl  from  the  trranilcliihlrcn  of  the  testator,  but  tin-  plaintiffs' 
counsel  liually  abandoned  all  the  counts  exce[)t  the  sixth,  and  havinir 
succeeded  in  showinj;  title  in  the  jdaintiffs  named  in  that  count  to  a 
moiety  of  the  premises  claimed,  rested.  Tlie  defendant's  counsel 
thereupon  moved  for  a  nonsuit,  on  the  grounds  (1)  that  the  iilain- 
tiffs  had  failed  to  show  any  title  to  the  premises  in  question.  Ity  reason 
of  the  uncertainty  of  the  term  "  back  lands,"  and  (2)  that  the  plaintiffs 
named  in  the  sixth  count  had  shown  title  to  only  a  moiety,  whereas  iu 
the  'count  they  claimed  the  whole  of  the  i)remises.  The  circuit  iu(l<'e 
granted  a  nonsuit,  without  stating  the  grounds  upon  which  the  order  for 
the  nonsuit  was  made.     The  plaintiffs  ask  for  a  new  trial. 

H.  Wells,  for  the  plaintiffs  ;  B.  Davis  Noxon,  for  the  defendant. 

CowEN,  J.,  delivered  the  opinion  of  the  court. 

I  can  hardly  think  the  judge,  in  granting  the  motion  for  a  nonsuit, 
laid  any  considerable  stress  upon  the  supposed  variance  between  the 
proof  and  the  sixth  count.  Whether  the  plaintiffs  had  made  title  in 
severalty  or  in  common,  the  judge  had  a  right  to  disregard  the  variance, 
in  his  discretion,  and  probably  would  have  done  so,  though  I  a<lniit  this 
lay  in  his  discretion.'  Under  the  p<iculiar  circumstances  of  this  case, 
the  plaintiffs  may,  if  they  shall  be  so  advised,  amend  by  adding  counts 
or  modifying  those  already  in  the  declaration,  in  such  a  manner  as  to 
avoid  any  variance  from  the  proof  at  the  trial. 

We  are  entirely  satisfied  that  a  new  trial  shall  be  granted  on  the  first 
ground  taken  for  a  nonsuit.  The  term  "  back  lands  "  was,  it  is  true,  in- 
sufficient of  itself  to  designate  any  particular  class  of  lands  owned  by  the 
testator.  It  was  uncertain,  and  might  refer  to  different  objects,  or  to 
none  upon  which  any  distinctive  character  could  be  fastened  by  extrinsic 
proof.  But,  id  certum  est,  quod  certum  reddi  potest.  You  must,  in  the 
most  accurate  description,  go  out  of  the  instrument  in  order  to  ai)ply  it 
to  the  subject-matter  of  the  devise  or  grant ;  ^  and,  as  far  as  we  are  able 
to  collect  from  the  evidence,  that  was  effectually  done  in  this  case  —  at 
least,  a  juiy  might  have  so  understood  the  testimony  of  Mersereau.  The 
premises  in  question,  and  other  lands  in  the  same  vicinity,  were  known 
and  called  by  the  testator  during  his  lifetime,  and  by  his  family  and 
neighborhood,  back  lands.  This  is  like  a  man's  making  a  map  of  his 
lands,  on  which  he  designates  certain  parcels  by  certain  names,  and  then 
devises  or  conveys  them  accordingly.  A  nickname,  or  a  name  by  repu- 
tation, given  by  the  testator  and  current  in  his  family  and  neighborhood, 


P 


1  Holmes  v.  Seely,  17  Wend.  "5,  79,  80; 
Weed  V.  Saratoga,  etc.,  R.  Co.,  19  Wend.  541, 
542. 

:  Wigr.  on  Extr.  £t.  38,  41 ;  2  Ph.  on  Bt. 


(8th  London  ed.)  731;  1  Id.  (7th  ed.),  with 
notes  by  Cowen  &  Hill,  note  957,  p.  1399; 
Sutherland,  J.,  in  Jackson,  ex  dem.  Lowell, 
V.  Parkburst,  4  Wend.  374. 


m 

m 


INTEKrKKTATION    OF   WILLS. 


353 


Illustrative  Cases. 


is  suflieient  to  designate  the  devisee,  and  why  not  the  subject-matter 
devised. 

The  rule  that,  to  be  valid,  a  will  or  other  writing  must  be  certain  in 
itself,  has  no  application,  except  to  such  particulars  as  do  not  in  their 
own  nature  refer  to  any  thing  dehors  the  instrument  in  question.  A 
devise  to  A.  and  "B.,  and  his  heirs,  might  be  irremediably  uncertain  in 
respect  to  what  hv  irs  are  intended.  But  the  parcels  in  a  devise  always 
lie  out  of  it,  and  must  be  sought  by  evidence  aliunde.  The  search  may, 
indeed,  be  unavailing,  but  still  there  is  the  right  of  search,  and  ques- 
tions are  thus  every  day  raised  for  the  jury. 

The  form  of  one  of  the  objections  .•/  the  trial  seems  to  suppose  that 
the  testimony  came  within  those  cases  which  refuse  the  testator's  decla- 
rations intended  by  him  directly  to  explain  the  words  of  his  will ;  and  I 
agree  that  such  declarations,  especially  if  they  were  made  at  the  time  of 
framing  the  will,  are  not  admissible.     Sir  John  Leach,  in   Goblet  v. 
Beechey,^  rejecting  the  evidence  of  Mary  Holt,  which  related  to  what 
Nollekins  said  at  the  time  of  her  witnessing  his  will,  Lord  Thurlow 
said,  very  properly,  in  Tonnereau  v.  Poyntz:^  "  I  layout  of  the  case  all 
declarations  of  the  testatrix  of  what  she  really  meant  to  give  at  the 
time  of  making  her  will,  and  all  state  of  her  property  from  whence  it 
might  be  inferred  what  she  meant."     But  he  immediately  added :  "  You 
must  hear  evidence  concerning  the  subject  to  which  the  will  applies,  in 
order  to  see  whether  the  description  applies  aptly  or  not."     All  the 
cases  agree  that  this  latter  rule  lets  in  what  the  testator  has  done  to  his 
property  in  altering  its  nature  or  its  form.     His  acts  have  thus  left  it 
within  or  taken  it  out  of  the  description,  and  there  are  several  cases 
tliat  his  declarations  are  admissible  for  the  like  purpose  of  applying  the 
description.     Sandford  v.  Raikes  ^  will  serve  in  a  good  measure  to  illus- 
trate both  propositions.     The  testator  had  ordered  timber  to  be  cut  down 
on  his  Youlston  estate  to  the  value  of  £10,000 ;  afterwards  he  devised 
a  house,  which  he  had  before  agreed  for  the  purchase  of,  to  one  Snnd 
ford,  and  added  in  his  will,  "  which  [house]  is  to  be  paid  for  oia  )1 
timber  which  I  have  ordered  to  be  cut  down."     Sandford  filed  his  bill 
to  compel  the  application  of  the  Youlston  estate  timber  to  the  purpose 
of  paying  for  his  house.     It  was  denied  by  the  defendants  that  the  will 
could  be  explained  by  evidence  of  what  the  testator  had  directed  as  tO' 
cutting  down  the  timber.     To  which  the  Master  of  the  Rolls  (Sir  William 
Grant)  answered :  "  I  had  always  understood  that  where  the  subject  of 
a  devise  was  described  by  reference  to  some  extrinsic  fact,  it  was  not 
merely  competent,  but  necessary,  to  admit  extrinsic  evidence  to  ascer- 


:Hli 


.'* 


'  Wigr.  on  Extr.  Ey.  151. 


»  1  Bro.  C.  C.  477. 


« 7  Mer.  6M. 


ilfe 


I 


354 


THEIK   ADMISSIBILITY   TO    EXPLAIN    CONTRACTS. 


Rvcrss  r.  Wlu'eler. 


in- 


if: 


l^-i;; 


tain  the  fact,  and  throui^h  that  medium  to  ascertain  the  subject  ot  the 
devise.  Here  the  question  is  not  upon  the  devise,  but  upon  the  suljject 
of  it.  Nothing  is  offered  in  explanation  of  tlie  will,  or  in  addition  to 
it.  The  evidence  is  oiJy  to  ascertain  what  is  included  in  the  description 
of  the  thing  devised.  When  there  is  a  devise  of  the  estate  purchaseiJ 
of  A.,  or  of  the  farm  in  the  occupation  of  B.,  nobody  can  tell  what  i- 
given  till  it  is  shown  by  extrinsic  evidence  what  estate  it  was  purchased  of 
A.  or  what  farm  was  in  the  occupation  of  B.  What  is  there  in  the  fact 
here  referred  to  —  viz.,  an  antecedent  order  for  cutting  down  tinihcr  — 
that  makes  it  less  a  subject  of  extrinsic  evidence  than  such  an  oiu-  as  I 
have  alluded  to?  Tlie  moment  it  is  shown  that  it  was  a  given  munlxT 
of  trees  growing  in  such  a  place,  or  £10,000  worth  in  value  of  the  tim- 
ber of  such  an  estate,  that  the  testator  had  ordered  to  be  cut  down,  the 
subject  of  the  devise  is  rendered  as  certain  as  if  tiie  iuinil)er,  vahie.  or 
situation  of  the  trees  had  been  specified  in  the  will." 

Then,  in  respect  to  the  name  of  an  estate  fixed  by  the  declarations  of 
the  testator.  In  Doe,  ex  dem.  Beach,  v.  Earl  of  Jersey,^  the  testator 
devised  thus:  "All  my  Briton  Ferry  estate,  and  all  my  P.  C.  estate, 
which,  as  well  as  my  Briton  Ferry  estate,  lies  in  the  county  of  Olr 
morgan."  The  court  held  that  the  devisee  was  not  confined  to  tlie  Britr 
Ferry  estate  lying  within  the  county  of  Glamorgan,  but  might  recover 
certain  i)remises  lying  in  Brecon,  out  of  the  parish  of  Briton  Ferry,  and 
out  of  Glamorgan,  because  the  premises  had  been  known  and  reputed 
as  a  part  of  the  Briton  Ferry  estate.  Abbott,  C.  J.,  said  the  words 
"  '  all  that,  my  Briton  estate,'  etc.,  denote  a  property  known  to  tiie  testa- 
trix by  the  name  of  her  Briton  Ferry  estate."  Among  other  thin^fs,  the 
entries  of  the  stewards  of  the  testatrix  and  her  predecessors,  in  which 
they  called  the  premises  in  question  "  Briton  Ferry  estate,  in  the  county 
of  Brecon,"  were  held  to  have  been  properly  received  at  the  trial.  In 
short,  the  case  was  in  principle  precisely  the  one  before  us.  P^vidence 
was  received,  both  of  the  testatrix's  own  declarations  and  those  made 
by  her  agent,  the  steward,  and  the  reputed  name  under  which  the  parcel 
was  comprehended.  Abbott,  C.  J.,  added  that  the  question  was  oni' 
of  parcel  or  no  parcel,  and  the  purpose  of  the  evidence  was  so  obvimis 
that  the  judge  did  right  in  receiving  it  without  the  counsel  being  put  to 
specify  the  object  with  a  view  to  which  it  was  offered.  The  case  of 
Hatch  V.  Hatch  ^  is  also  in  point. 

It  is  very  common  that  neither  the  judge  nor  jury  can  underatand  the 


ill! 


>  1  Barn.  A  Aid.  550;  in  King's  Bench,  3  *  SHajrw.  39. 

I  Sara.  A  Oress.  870;  *.  c.  in  House  ot  Lord*. 


I  " 


INTKRPRETATION    OF    WILLS. 


;jr)5 


Illustrative  Cases. 


liven  iminl)<'r 


meaning  of  a  word  used  to  denote  the  subject  of  bequest  or  devise. 
The  testator  may  express  himself  in  a  foreign  language,  or  use  terms 
with  which,  as  a  member  of  a  particular  trade  or  calling,  he  is  familiar,' 
or  in  language  which  has  a  provincial  or  local  meaning.*^  lu  either  case, 
pi-rsons  acquainted  with  the  meaning  of  the  words  must  be  received 
as  witnesses  to  translate  or  define  them.'  NoUekeus,  the  sculptor, 
lieqiieathed  "  all  the  marble  in  the  yard,  the  tools  in  the  shop,  bankers, 
•mod.,'  etc.,"  and  sculptors  were  received  to  show  that  "  mod."  meant 
models,  and  then  what  the  latter  wore  was  understood  to  import  among 
loulptors.*  I  mentioned  a  devise  to  another  by  a  nickname.  In 
Anrlrews  v.  Thomas,^  Sir  Lloyd  Kkvyon  admitted  you  may  prove  that 
the  testator  usually  called  the  devisee  by  that  name.  Again,  in  Herbert 
V.  Reid,^  the  testator  bequeathed  £500  to  Jane  Herbert  if  in  his  service 
at  the  time  of  his  decease.  She  lived  with  and  served  the  testator  some 
time,  ])ut  left  iiis  house  shortly  before  his  death ;  and  his  declarations 
soon  after  she  left  were  received  to  show  that  he  still  considered  the 
legacy  :is  her  due,  and  that  she  was  to  return  if  he  got  well.  And  it 
was  inferred,  on  the  whole  of  what  he  said,  that  he  did  not  consider  her 
as  having  quit  his  service,  though  she  had  actually  left  the  house.  She 
therefore  obtained  a  decree  for  the  legacy. 

So  much  for  the  declarations  of  the  testator.  They  are  clearly 
receivable  as  giving  a  name  or  character  either  to  the  devisee  or  the 
property  devised ;  and  that,  too,  as  appears  by  the  cases,  whether  such 
declarations  be  made  before  or  after  the  will  was  executed. 

In  the  case  at  bar,  the  name  of  the  premises  in  question,  as  given  by 
the  testator  when  he  talked  of  them,  was  "back  lands."  Sometimes  he 
gave  them  another  name,  but  I  understand  the  evidence  to  be  that  he 
most  usually  called  them  "  back  lands ;  "  and  there  can  be  no  doubt  that 
proof  to  show  the  prevalent  name  in  his  family  and  neighborhood,  which 
was  also  "  back  lands,"  is  admissible.  None  of  the  evidence  given 
tended  to,  or  detracted  from  the  language  of  the  will,  but  merely  to 
explain  and  give  meaning  to  that  language.  It  was  different  in  the  case 
of  Doe,  ex  dem.  Chichester,  v.  Oxenden,"^  a  case  mainly  relied  on  by 
the  defendant's  counsel.  The  devise  there  was,  "  I  give  my  estate  of 
Ashton."  The  testator  had  an  estate  which  he  used  to  call  his  Ashton 
estate,  only  a  part  of  which  was  locally  situate  at  Ashton.  His  delara- 
tions  gi\ing  a  name  to  the  estate,  and  the  acts  of  his  steward,  were 


'  Wigr.  on  Extr.  Ev.  34,  35. 
•  Gresh.  on  Bq.  Ev.  199. 

» im. 

•Goblet  V.  Beeohey,  3  Sim.  24;  Wigr.  on 
Extr.  Ev.  139. 


6  1  Cox,  225. 
8  16  Ves.  481. 
t  3  Taun.  UT. 


356 


THEIR   ADMISSIBILITY    TO    EXPLAIN    CONTKACTS. 


Tilloy  V.  City  of  Chicaj;o. 


denied  as  evidence  that  lie  intended  to  devise  his  whole  Ashton  estate. 
But  this  was  on  the  ground  that  the  words  meant  an  estate  locally 
situate  at  Ashton ;  ^  and  to  receive  the  testator's  declarations  goinir  to 
show  the  contrary  would,  therefore,  be  to  contradict  the  language  of  the 
will.2  The  learned  writer  thinks  that  the  principle  of  adhering  to  local 
description  was  cari'ied  in  this  case  to  its  utmost  extent.  But  the 
decision  was  affirmed  in  the  House  of  Lords. ^ 

New  trial  granted,  tlie  costs  to  abide  the  event,  with  leave  to  amend 
narr.  on  same  terms. 

New  trial  granted. 


28.  NOT  ADMISSIBLE  WHERE  NO   CONTRACT  IS   SHOWK. 

TiLLEY  V.  City  of  Chicago.* 


In  the  Supreme  Court  of  the  United  States,  October  Term,  1880. 


ii: 


Hon.  Morrison  R.  Waite,  Chief  Justice. 
"    JosKPH  P.  Bradlky, 
John  M.  Harlan, 
Samuel  F.  Miller, 
Stephen  J.  Field, 
William  B.  Woods, 


II 
i< 
II 


-  Associate  Justices.^ 


1.  In  the  absence  of  a  contract,  evidence  of  usage  and  custom  is  irrelevant. 

S.  The  authorized  o£Scers  of  a  municipality  having  decided  to  erect  a  public  building, 
offered  prizes  for  the  best  plans,  with  cost,  etc.  T.,  an  architect,  was  awarded  one  nf 
the  prizes,  with  notice  that  "  the  award  should  not  be  considered  as  indicctin^  a  prefer- 
ence for  either  of  said  plans,  as  to  which  should  be  finally  adopted,  from  which  the  said 
building  should  be  erected,"  and  the  amount  of  the  prize  ($1,000)  was  paid  to  him.  Sub- 
sequently, by  resolution,  the  officers  adopted  T.'s  plan,  subject  to  conditions.  Held, 
that  this  resolution  was  a  voluntary  act  of  the  officers,  and  did  not  amount  to  a  contract 
between  them  and  T.  Held,  further,  that  in  an  action  by  T.  against  the  officers,  evi- 
dence of  a  usage  and  custom  among  architects  that  in  the  absence  of  a  special  contract 
the  superintendence  of  the  construction  of  a  building  belongs  to  the  architect  whose 
plans  are  adopted,  and  that  where  prizes  for  plans  are  offered  the  plans  of  the  successful 
competitors  belong  to  them,  and  if  subsequently  adopted  as  the  plans  to  build  b>,  they 
are  always  paid  for  in  addition  to  the  prize  itself,  was  properly  excluded. 

In  error  to  the  Circuit  Court  of  the  United  States  foi-  the  Northern 

District  of  Illinois. 

•  Not  yet  reported, 
t  Mr.  Justice  Clifford  and  Mr.  Justice  Hunt  did  not  sit. 


1  Per  Holroyd,  J.,  in  the  course  of  the 
argument  of  Doe,  cxdem.  Itonch,  v.  Earl  of 
Jersey,  1  liarn.  A  Aid.  054;  Uibbs>,  C.  J.,  in 


Doe,  ex  dom.  Oxcnden,  v.  Chichester,  4  Dow, 
d2  et  $eq.,  in  the  House  of  Lords. 

»  Wigr.  on  Extr.  Ev.  15,  ITop.  II.  19, 60. 

8  4  Dow  H.  L.  66. 


CONTRACT   ALWAYS    REQUISITE. 


,).)• 


hton  estate. 
state  locally 
ms  goin<r  to 
guage  of  tho 
;ring  to  local 
it.     But  the 

ive  to  amend 

cd  granted. 


HOWN. 


fern,  1880. 


public  building, 
awarded  one  nf 
citing  a  prefer- 
in  which  the  said 
aid  to  him.   Sub- 
onditions.    Held, 
)unt  to  a  contract 
the  offlcerB,  cvi- 
special  contract 
architect  whose 
ol  the  successful 
to  build  bj.they 
Bd. 

the  Northern 


hicljester,  4  Dow, 

ords. 

l»rop.  II.  W.  60. 


Illustrative  Cases. 


Mr.  Justice  Woods  delivered  the  opinion  of  the  court. 

This  was  an  action  of  assumpsit,  brouijht  by  the  plaintiff  in  error  in 
the  Circuit  Court  of  the  Unite<l  States  for  the  Northern  District  of 
Illinois,  jointly  against  the  county  of  Cook  and  the  city  of  Chicago. 
The  declaration  consisted  of  the  common  counts  for  work  and  labor 
done,  goods  sold  and  delivered,  money  lent  and  advanced,  and  upon 
account  stated. 

The  following  is  a  copy  of  the  account  sued  on,  which  was  appended 
to  the  declaration :  — 

The  County  of  Cook  and  the  City  of  Chicago,  to  Thomas  Tilley,  Dr. 

For  services  as  architect  in  preparing  plans,  drawings, 
specifications,  diagrams,  estimates,  and  details  for  the 
new  court-house  and  city  hall,  and  superintendence  of 
erecting  the  same,  5  per  cent  on  $2,909,629,  the  esti- 
mated cost  of  the  building,  the  plan  being  that  known 
as  "Eureka" $145,481  45 

The  defendants  pleaded  the  general  issue. 

By  provision  of  the  Constitution  and  laws  of  the  State  of  Illinois, 
the  county  affairs  of  Cook  County  are  managed  by  a  board  of  com- 
missioners of  fifteen  persons.^  The  affairs  of  the  city  are  controlled  by 
the  Common  Council.^ 

The  county  of  Cook  was  the  owner  of  a  block  of  ground  in  the  city 
of  Chicago,  known  as  the  court-house  square,  on  which  it  was  proposed 
to  erect  a  building,  to  be  used  as  a  city  hall  and  county  court-house,  in 
which  both  the  business  of  the  city  and  county  might  be  conducted. 

On  July  10,  the  Board  of  County  Commissioners,  and  on  July  15, 
1872,  the  Common  Council  adopted,  each  for  itself,  the  following  reso- 
lution ;  — 

"  Resolved,  That  it  is  the  sense  of  the  joint  meeting  that  they  recom- 
mend to  the  Common  Council  of  the  city  of  Chicago  and  the  Board  of 
Conunissioners  of  Cook  County  that  the  city  of  Chicago  and  the  county 
of  Cook  will  authorize  the  building  committees  of  the  several  boards  to 
offer  a  prize  of  five  thousand  dollars  ($5,000)  for  the  best  plan,  two 
thousand  dollars  ($2,000)  for  the  second,  and  one  thousand  dollars 
(81,000)  for  the  third  best  plan  for  a  court-house  and  city  hall,  to  be 
erected  jointly  by  the  county  of  Cook  and  the  city  of  Chicago  upon 
the  public  square  in  the  city  of  Chicago,  the  said  plans  to  be  submitted 
to  respective  boards,  in  conjunction  with  the  Board  of  Public  Works 
of  the  city  of  Chicago." 


»  Count.  111.  1870,  Art.  X.,  sect.  7. 


»  Priv.  Laws  111.  I»i3,  p.  40. 


II 


;; 

j ! 

1 1 

III 

HI 

!» 


mi 


W 


358 


THEIR   ADMISSIBILITY   TO   EXPLAIN    CONTRACTS. 


Tilley  v.  City  of  Chicago. 


On  August  5,  1872,  the  Common  Council  of  the  city  and  the  Board  of 
County  Commissioners  both  passed  an  order  providing  for  a  joint  con- 
tract between  the  city  and  county  for  the  erection  of  a  building  on  the 
court-house  square,  and  on  August  28,  1872,  the  contract  was  executed 
by  the  city  and  county  authorities.  It  declared  that  It  was  for  the  pub- 
lic convenience  that  the  courts  and  offices  of  the  city  "should  be 
located  at  some  one  convenient  point,  and  readily  accessible  to  each 
other,"  and  provided  for  the  erection  by  the  city  and  county  of  a 
public  building  on  the  court-house  square,  for  the  use  of  the  county  and 
city  governments,  respectively,  and  the  courts  of  record ;  that  the  gen- 
eral exterior  design  of  the  building  should  be  of  such  uniform  character 
and  appearance  as  might  thereafter  be  agreed  upon  by  the  Board  of 
County  Commissioners  and  the  Common  Council  of  the  city. 

The  contract  further  provided  as  follows :  — 

"  3.  That  portion  of  the  said  building  sitr"t,e  west  of  the  north  and 
south  centre  line  of  said  block  shall  be  erected  by  the  city  of  Chicago 
at  its  own  expense. 

"4.  The  city  of  Chicago  shall  occupy  that  portion  of  said  block 
west  of  the  said  centre  line  for  a  city  hall,  and  offices  incidental  to  the 
administration  of  the  city  government,  and  for  no  other  purpose  what- 
ever, except  as  hereinbefore  provided. 

"  6.  Each  of  the  parties  will  heat,  light,  and  otherwise  maintain  and 
furnish  its  own  portion  of  said  building." 

On  November  25,  1872,  the  building  committees  of  the  Common 
Council  and  the  County  Commissioners  published  an  advertisement  call- 
ing for  designs  for  the  proposed  building.  The  advertisement  declared 
that,  in  order  to  secure  suitable  designs,  the  city  and  county  jointly 
offered  the  following  premiums :  For  the  best  design,  $5,000 ;  for  the 
second  best,  $2,000 ;  and  for  the  third  best,  $1,000.  It  provided  as 
follows:  "Each  design  must  have  a  device  or  motto  marked  on  each 
drawing,  and  be  accompanied  by  a  sealed  letter  giving  the  name  of  the 
author,  which  will  be  opened  after  the  final  awr.rd  is  made,  only  for  the 
purpose  of  ascertaining  the  names  of  the  successful  architects,  and  for 
the  return  of  the  unsuccessful  drawings  to  their  authors.  Each  com- 
petitor will  give  the  cubical  contents  of  his  building,  and  an  estimate  of 
the  cost  of  the  same  complete." 

Designs  were  submitted  by  a  large  number  of  architects,  and  the 
building  committees  of  the  City  Council  and  the  Board  of  County  Com- 
missioners made  a  report  awarding  the  prizes.  The  plaintiff  in  error, 
•who  had  adopted  for  his  drawing  the  word  "  Eureka  "  as  the  device  or 
motto  to  distinguish  it,  was  awarded  the  third  prize  of  $1,000. 


I  ' 


^ 


A    CONTRACT   ALWAYS    RKQUISlXlU. 


359 


Illustrative  Cases. 


On  August  4  the  County  Board,  and  on  August  18,  1873,  the  City 
Council,  adopted  the  following  resolution:  "  Tluit  the  report  of  the 
majority  of  the  joint  committee  awarding  the  prizes  for  plans  of  court- 
house and  city  hall  shall  be  concurred  in  and  the  award  eonlirmed ; 
provided,  that  nothing  herein  or  in  said  report  contained  shall  be  con- 
strued as  indicating  a  preference  for  either  of  said  plans,  as  to  which 
shall  be  finally  adopted,  from  which  the  said  building  shall  be  erected." 

The  plaintiff  in  error  was  paid  the  thousand  dollars  awarded  to  him 
as  a  prize. 

Afterwards,  on  August  25,  the  County  Commissioners,  and  on  Octo- 
ber 10,  1873,  the  City  Council,  adopted  the  following  resolution :  "  That 
the  plan  known  as  '  Eureka,'  or  number  5  (Ave),  in  the  collection  sub- 
mitted for  court-house  and  city  hall,  be,  and  is  hereby  selected  and 
adopted  as  the  plan  after  which  to  build  such  court-house  and  city  hall 
(the  Board  of  Commissioners  of  Cook  County  concurring),  subject  to 
such  change  and  modifications  as  may  hereafter  be  determined  upon  by 
the  Common  Council  of  the  city  of  Chicago  and  the  County  Board,  pro- 
vided the  estimate  of  the  architect  who  presented  said  plan,  as  to  the 
cost  of  construction  of  the  building,  shall  be  verified." 

Upon  the  trial  of  the  case,  the  testimony  tending  to  establish  the  facts 
above  recited  having  been  given  in  evidence  by  the  plaintiff,  he  was 
sworn  as  a  witness  in  his  own  behalf,  and  testified  that  he  was  an  archi- 
tect of  fifteen  years'  standing ;  that  he  had  made  the  design  designated 
by  the  word  "  Eureka;"  and  that,  after  the  passage  by  the  City  Council 
and  Board  of  County  Commissioners  of  the  resolution  last  above  men- 
tioned, he  had  verified  the  cost  of  the  construction  of  the  proposed 
building  in  the  way  customary  and  usual  with  architects,  which  was 
made  up  at  the  rate  of  thirty-five  cents  per  cubic  foot  foi  the  building, 
and  was  indorsed  by  fourteen  or  fifteen  architects. 

The  plaintiff  pi'oduced  before  the  jury  all  his  plans  for  which  the 
prize  had  been  awarded  him.  He  offered  to  prove  their  value,  and 
offered  to  prove  the  time  employed  and  exi)cnse  incurred  in  the  prepara- 
tion of  them.     The  court  excluded  the  evidence  so  offered. 

The  plaintiff  further  offered  evidence  to  establish  that  by  the  usage 
and  custom  of  architects,  in  the  absence  of  a  special  contract,  the 
superintendence  of  the  construction  of  a  building  belonged  to  the  archi- 
tect whose  plans  were  adopted.     This  was  also  excluded. 

The  plaintiff  also  offered  evidence  to  prove  that  by  the  usage  and 
custom  of  architects,  where  prizes  for  plans  were  offered,  the  plans  of 
Uie  successful  competitors  belonged  to  them ;  and,  if  subsequently 
adopted  as  the  plans  to  build  by,  were  always  paid  for  in  addition  to 


3«)0 


THEIR    ADMISSIBILITY   TO    EXPLAIN    CONTRACTS. 


Tilliy  V.  City  of  rhinvgo. 


the  prize  itself.     To  this  defendants  objected,  aud  the  court  sustained 
the  objection. 

The  plaintiff  also  offered  evidence  to  establish  the  value  of  the 
services  rendered  in  verifying  the  cost  of  the  proposed  building  accord- 
ing to  the  "  Eureka"  plans,  to  which  the  defendants  objected,  aud  the 
court  sustained  the  objection. 

This  was  all  the  evidence  given,  or  offered  to  be  given  in  the  cause. 

The  plaintiff  then  rested  his  case ;  whereupon  the  court  directed  the 
jury  to  And  for  the  defendants. 

The  jury  returned  a  verdict  for  defendants  as  directed  by  the  court, 
and  judgment  Avas  entered  therein.  To  reverse  this  judgment  this  writ 
of  error  was  brought.  It  will  be  observed  that  no  evidence  was  intro- 
duced or  offered  to  show  that  the  plans  of  the  plaintiff  were  used  by  the 
defendants,  or  either  of  them,  or  that  the  building  for  which  they  were 
used  was  ever  erected.  It  is  clear  that  if  the  plaintiff  has  any  right  of 
action  it  must  arise  on  the  resolutions  adopted  by  the  Board  of  County 
Commissioners  August  25,  and  the  City  Council  October  10,  187o. 
All  that  had  taken  place  before  those  dates  was  the  making  of  a  coTitract 
l)etween  the  city  and  the  county,  by  which  they  agreed  to  join  in  the 
erection  of  a  public  building  in  the  court-house  square,  each  party  to 
Iniild  and  pay  for  its  own  part  of  the  structure ;  an  offer  by  the  city  and 
county  of  three  prizes  for  the  best  plans ;  an  award  of  the  prizes,  by 
which  the  third  prize  of  $1,000  was  given  to  the  plaintiff  in  error,  with 
the  distinct  notice  that  "  the  award  should  not  be  considered  as  indicat- 
ing a  preference  for  either  of  said  plans,  as  to  which  should  be  finally 
adopted,  from  which  the  said  building  should  be  erected,"  and  the  pay- 
ment to,  and  the  receipt  by  the  plaintiff  of  the  prize  awarded  him. 

By  the  payment  to  the  plaintiff  in  error  of  the  prize,  the  defendants 
discharged  every  obligation  due  from  them  to  I'.im  arising  out  of  the 
preparation  of  plans  for  the  proposed  building.  Upon  that  payment 
being  made,  no  contract  whatever,  either  express  or  implied,  existed 
between  the  plaintiff  and  the  defendants.  If,  therefore,  the  plaintiff 
had  any  right  of  action  against  defendants,  it  must  have  arisen  by 
reason  of  the  adoption  of  the  resolution  just  mentioned,  and  what  was 
ilone  by  plaintiff  after  its  adoption. 

The  resolution  was  the  voluntary  act  of  the  City  Council  and  County 
Commissioners.  It  was  not  a  proposition,  but  simply  the  expression  of 
a  purpose  to  build  their  structure  after  the  plans  of  the  plaintiff,  subject 
to  such  changes  and  modifications  as  might  thereafter  be  determined 
upon  by  the  Common  Council  and  the  County  Board.  The  resolution 
was  not  adopted  at  the  instance  or  suggestion  of  the  plaintiff.    Suppose 


'  Tuttle  r.  Love,  7  Johns.  470. 
«  Tucker  v.  WoocIh,  12  Joliii^.  139. 


*  19  Johns.  206. 
«  Peake  N.  P.  227. 


■  .        ' 

A    CONTRACT   ALWAYS    REQUISITE. 


3t>l 


Illustrative  Cases. 


that  the  day  after  its  adoption  tlie  resolution  had  ])een  reconsidered  ami 
rescinded,  would  tlie  defendants  nevertheless  have  been  liable  for  the 
value  of  the  plans,  and  for  five  per  cent  on  the  estimated  cost  of 
the  building  for  superintendence,  amounting  in  the  aggregate  to  near 
8146,000? 

Suppose  a  private  person  should  announce  his  purpose  to  build  a 
house  after  a  design  which  he  had  seen  in  an  architect's  office,  but 
before  he  begins  the  execution  of  his  purpose,  changes  his  mind,  never 
calls  for  or  uses  the  plans,  or  even  builds  the  house,  is  he  liable  to  the 
architect  for  the  value  of  the  plans  and  for  superintendence  ?  In  such 
a  case  there  certainly  is  no  contract  between  him  and  the  architect  upon 
which  a  recovery  can  be  based. 

The  claim  of  the  plaintiff  is,  that  by  the  adoption  of  the  resolution  by 
the  City  Council  and  the  County  Board,  without  any  act  done  or  assent 
on  his  part,  they  were  bound  to  go  on  and  erect  the  building  on  hi.s 
pkns,  and  expend  $2,909,000,  its  estimated  cost. 

The  resolution  did  not  bind  the  plaintiff  to  furnish  his  plans  and 
superintend  the  building.  There  was  no  mutuality,  and,  therefore,  no 
consideration,  both  of  which  are  essential  to  a  contract.  Notwith- 
sttuiding  the  resolution,  the  plaintiff  might  have  said,  "  I  will  not  furnish 
my  plans,  and  I  will  not  superintend  the  building,''  and  the  defendants 
would  have  had  no  claim  on  him. 

If  one  does  not  accede  to  a  promise  as  made,  the  other  party  is  not 
bound  by  it.^  When  A.  signs  a  writing  by  which  he  declares  he  will 
sell  to  B.  his  house  at  a  certain  price,  thi.s  is  a  mere  proposition,  and  not 
a  contract.^  In  Wood  v.  Edtvards,'^  where  A.  wrote  that  he  had  agreed 
to  a  substitute  for  an  existing  agreement,  which  he  would  execute, 
Si'ExcER,  C.  J. ,  said  the  proposition  of  A.  to  excute  the  new  agreement 
was  not  binding  on  him,  as  well  on  the  ground  of  want  of  consideration 
Hs  want  of  mutuality,  since  the  plaintiffs  on  their  part  were  not  bound 
to  execute  the  agreement.  In  the  case  of  Kingston  v.  Phelps^^  the 
plaintiff  proved  that  the  defendant  consented  to  be  bound  by  an  award 
to  be  made  on  a  submission  by  other  underwriters  on  the  same  policy, 
but  the  witness  proved  no  'agreement  on  the  part  of  the  plaintiff  to  be 
bound  by  the  award.  Lord  Kekyon  held  there  was  no  mutuality,  and, 
therefore,  the  defendant's  agreement  was  a  mere  nudum  pwtuiu. 

An  offer  of  a  bargain  Ijy  one  person  to  another  imposes  no  obligation 
upon  the  former,  unless  it  is  accepted  b}'  tlie  latter  upon  the  terms  on 


I-"' 


m 


m: 


iv-. 


i 

1 

11 

m' 

n 

w'-- 

1 

1 

1 

!■ 

liw 


362 


THEIR   ADMISSIBILITY   TO   EXPLAIN    CONTRACTS. 


Tilley  v.  City  of  Chicago. 


which  the  offer  was  made.  Any  qualification  of  or  departure  from  these 
terms  invalidates  the  offer,  unless  the  same  be  agreed  to  by  the  party 
who  made  it.^ 

In  this  case,  there  being  only  an  expression  of  purpose  by  one  party 
to  erect  a  building  according  to  plans  antecedently  made  by  another, 
and  no  obligation  entered  into  by  the  other  party,  and  no  plans  iisod 
or  building  erected,  there  was  no  contract  between  the  parties,  either 
express  or  implied. 

If  we  are  correct  in  this  conclusion,  then  all  the  evidence  offered  by 
the  plaintiff  to  prove  the  value  of  the  plans,  and  the  time  emi)loyed  and 
the  expenses  incurred  in  their  preparation,  was  irrelevant  and  immateiiu!. 

The  only  purpose  for  which  such  evidence  could  be  admitted  would 
be  to  prove  the  damag<^  sustained  by  the  plaintiff  by  the  breach  of 
his  alleged  contract  with  the  defendants.  But  if  he  had  no  contract, 
express  or  implied,  he  was  entitled  to  no  damage,  and  could  siiow  none. 

It  is  complained  that  the  evidence  offered  to  prove  the  cnstom  of 
architects  was  excluded.  We  think  it  M'as  rightly  excluded.  Proof  of 
usage  can  only  be  received  to  show  the  intention  or  understanding 
of  the  parties,  in  the  absence  of  a  special  agreement,  or  to  explain  the 
terms  of  a  written  contract.^  In  all  cases  where  evidence  of  usage  is 
received,  the  rule  must  be  taken  with  this  qualification:  that  the  evidence 
be  not  repugnant  to,  or  inconsistent  with  the  contract.^  The  inference 
from  these  principles  is  inevitable,  that  unless  some  contract  is  shown, 
evidence  of  usage  or  custom  is  immaterial. 

The  plaintiff  in  error  says  he  was  ready  to  prove  a  custom  of  archi- 
tects that  when  prizes  were  offered  for  plans  of  a  building  the  suc- 
cessful competitor  remained  the  owner  of  his  own  designs,  and  if  thoy 
were  adopted  he  was  entitled  to  compensation  therefor  in  addition  to 
the  prize,  and  that  by  the  same  custom  the  adoption  of  his  plans 
entitled  him  to  superintend  the  erection  of  the  building,  and  to  the  usual 
remuneration  therefor.  He  claims,  therefore,  that,  in  view  of  this  cus- 
tom, the  ado})tion  of  his  plans  by  the  passage  of  the  resolution  referred 
to,  by  the  city  and  county  boards,  amounted  to  a  contract  on  the  part 
of  the  defendants  to  pay  for  the  plans,  and  employ  him  to  superinteml 
the  erection  of  the  building  and  pay  him  therefor. 


'  Eliason  v.  Henshaw,  4  Wheat.  225.  See 
also  Welch  v.  Alton,  etc.,  Ins.  Co.,  10  111.  225; 
McClay  v.  Ilarvey,  90  111.  525. 

2  Hutchinson  v.  Tatham,  L.  K.  8  C.  P.  482; 
Field  V.  Lelean,  30  L.  J.  (Exch.)  168;  Bay- 
water  V.  Richardson,  1  Ad.  &  E.  508;  Robin- 
Bon  V.  United  States,  13  Wall.  3C3. 


■'  Holding  r.  Plgott,  7  Bing.  465, 474;  Clark 
V.  Roystone,  13  Mee.  ft  W.752;  Yates  v.  Pini, 
HoltN.  P.  95;  Trueman  r.  Loder,  11  Ad.  &  E. 
589;  Bliven  v.  New  England  Screw  Co.,  23 
How.  420. 


A    CONTRACT   ALWAYS    REQUISITE. 


3(i;j 


llliiistrutive  Ciises. 


The  offer  of  the  plaintiff  in  error  to  prove  certain  facts  having  been 
rejected,  he  must  be  pi'esumed  to  be  able  to  prove  what  he  offered  ti) 
prove.  We  must  therefore  assume  that  the  custom  which  he  offered 
to  prove  did  in  fact  exist.  But  what  was  that  custom?  Clearly,  that 
if  the  building  was  erected  according  to  the  successful  plans  the  archi- 
tect was  entitled  to  pay  therefor.  That  was  such  an  acceptance  and 
adoption  of  his  plans  as  would  give  him  the  right  to  compensation 
therefor,  and  the  right  to  superintend  the  erection  of  the  building  and 
receive  the  usual  remuneration.  The  custom  certainly  did  not  bind  the 
party  who  offered  prizes  for  plans,  after  having  paid  the  prizes,  to  pay 
also  for  plans  that  he  never  used,  and  for  superintendence  of  a  building 
that  he  never  erected,  merely  because  he  had  selected  a  particular  plan 
and  announced  his  puri)Ose  to  build  in  accordance  with  it.  If  such 
were  the  custom  and  usage  of  architects  in  Chicago,  it  was  an  absurd 
and  unreasonable  custom,  and  therefore  not  binding.  ^ 

If  the  plaintiff  in  error  had  offered  to  show  that,  after  the  passage  of 
the  resolution  by  which  his  plan  was  accepted,  the  defendants  had 
erected  their  building  according  to  his  plans,  then  the  evidence  of  the 
custom  would  have  been  pertinent.  But  he  made  no  such  offer,  and  it 
is  to  be  presumed  no  such  fact  existed.  The  evidence  of  this  custom 
was  tlierefore  properly  excluded. 

The  plaintiff  in  error  complains  that  he  was  not  allowed  to  prove  tlie 
value  of  his  services  in  verifying  the  cost  of  the  proposed  building 
according  to  his  plans. 

"We  think  the  court  was  right  in  excluding  this  evidence.  There  was 
no  proof,  nor  any  offer  of  proof,  to  show  that  the  services  of  the  plaintiff 
were  rendered  at  the  instance  or  request  of  defendants,  or  either  of 
them.  From  all  that  appears,  the  sei'vices  were  voluntarily  rendered  by 
the  defendant,  and  no  use  whatever  was  made  of  the  results  of  his  inves- 
tigation. The  law,  therefore,  does  not  imply  a  contract  to  pay  for 
them,  and  proof  of  their  value  was  quite  immaterial. 

The  evidence  rejected  was  properly  excluded  on  another  ground. 
The  defendants  were  charged  in  the  declaration  with  a  joint  liability, 
hut  there  was  no  privity  between  them,  either  by  law  or  contract.  The 
evidence  offered  was  to  show  a  joint  liability.  So  far  as  it  went,  it 
failed  to  do  this  ;  on  the  contrary,  it  was  made  to  appear  tliat  each  of 
the  defendants  was  building  its  own  part  of  the  structure  at  its  own 
expense,  and  for  its  own  use.     After  the  award  and  payment  of  the 


>  United  States  v.  Buchanan,  8  How.  83;  >.c.  3  Wash.  C.  Ct.  14». 


m 

!5'     t;i 


I     I 


-\ 


11 


i 


,m 


364 


THEIR   ADMISSIBILITY   TO  EXPLAIN   CONTRACTS. 


Parol  Evidence  —  When  Admissible. 


prizes,  they  assumed  no  joint  liability,  as  the  evidence  admitted  clearly 
showed.  And  the  evidence  offered  did  not  tend  to  establish  a  joint 
liability.  It  did  not,  therefore,  support  the  case  made  in  the  declara- 
tion, and  was  properly  excluded  from  the  jury.  As  the  plaintiff  aslced 
no  leave  to  amend,  this  ruling  of  the  court  is  not  a  ground  of  error. 

We  find  no  error  in  the  record.     The  judgment  of  the  Circuit  Court 
must  be  affirmed. 

Judgment  affirmed. 


NOTES. 

§  179.  Parol  Evidence  not  receivable  to  vary  or  contradict  a  Writingr.— 
It  is  a  general  and  well-known  rule  of  law  that  parol  evidence  cannot  be  re- 
ceived to  contradict,  vary,  add  to,  or  subtract  from  the  terms  of  a  written 
instrument.'  This  rule  is,  however,  subject  to  the  exceptions  that  a  "  latent 
ambiguity  "  may  be  explained,'  or  that  it  may  be  sliown  that  a  contemporaneous 
or  supplementary  agreement  on  a  collateral  matter  had  been  entered  into,'  or 
that  the  instrument  is  void  or  of  no  effect  because  it  was  obtained  by  forgery 


•  Goss  V.  Lord  Nugent,  5  Barn.  &  Adol. 
64;  Meres  v.  Anscll,  3  Wiln.  275;  Ogilvie  v. 
Foljambe,  3  Mer.  53;  Attwood  v.  Small,  6 
CI.  &  Fin.  232;  IJesant  r.  Cio.ss,  10  C.  B.  895; 
Canie  v.  Horsfall,  2  Oar.  &  Kir.  349;  Clif- 
ton V.  Walmesley,  5  Term  Hep.  564 ;  Henson 
V.  Cooper,  3  Scott  N.  U.  48;  Harnor  v. 
Groves,  15  C.  B.  «()7;  I'reston  v.  Merceau,  2 
W.  Black.  1249;  Adams  r.  Wordley,  1  Mee.  & 
\V.  374;  Perkins  v.  Young,  16  Gray,  389; 
Cocke  V.  Bailey,  42  Miss.  81 ;  Kirk  v.  Hart- 
man,  63  Pa.  St.  97;  Halliday  v.  Hart,  ,30  N.  Y. 
474;  Erwin  v.  Saunders,  1  Cow.  249;  Mott  v. 
Kielitmeyer,  57  N.  Y.  49;  Van  Bokelen  v. 
Taylor,  02  N.  Y.  105;  llcilner  v.  Inibrie,  6 
Serg.  &  K.  401 ;  Ilagey  v.  llill,  75  Pa.  St.  108; 
Pennsylvania  Canal  Co.  v.  Belts,  1  W.  N. 
C.  328;  Gavinzel  r.  Crump,  22  Wall.  308; 
Eveleth  v.  Wilson,  15  Me.  109;  Bromley  v. 
Elliott,  38  N.  H.  287 ;  Bond  v.  Clark,  35  Vt. 
577;  Bleckley  v.  Munson,  13  Conn.  299; 
Kogers  V.  Colt,  21  N.  J.  L.  704;  Young  v. 
Frost,  5  Gill.  287;  Hill  v.  Peyton,  21  Gratt. 
386;  Fankboner  v.  Fankboner,  20  lud.  62; 
Johnson  v.  Pollock,  58  111.  181 ;  Warren  v. 
Crew,  22  Iowa,  315;  Irish  v.  Dean,  39  Wis. 
562;  Ruiz  v.  Norton,  4  Cal.  3.VJ;  Lemaster  r. 
Burckhart,  2  Bibb,  25;  Falconer  v.  Garri.son, 
1  McOord,  209;  Davis  v.  Moody,  15  Ga.  17.">; 
West  V.  Kelly,  19  Ala.  253;  Laycock  v.  David- 


son, 11  La.  An.  328;  Peers  v.  Davis,  29  Mo. 
184;  Koehring  v,  3Ioemminghoff,  61  Mo. 
403;  Richardson  v.  Comstock,  21  Ark.  69; 
Donley  i".  I.ush,  44  Texas,  1.  See,  further, 
Greenl.  on  Ev.,  §§  27.")-281;  Whart.  on  Ev.,  S 
920  et  seq. 

"  Doe  V.  Iliscocks,  5  Mee.  &  W.  363;  Rex 
V.  Laindcn,  8  Term  Rep.  379;  Cocker  v.  Guy, 
2  Bos.  &  Pul.  565;  Paddock  v.  Fradley,  1 
Cromp.  &  J.  90;  Norman  v.  Morrill,  4  Ves. 
760;  Grey  y.  Harper,  1  Story,  574;  Goldshede 
r.  Swan,  1  F;xch.  158;  Verz.an  v.  McGregor, 
23  Cal.  339;  Hinnemann  r.  Rosenback,  39  N. 
y.  98;  Wayniack  v.  Heilnian,  26  Ark.  449; 
Wood  V.  Augustine,  61  Mo.  46;  Baldwin  v, 
Winslow,  2  Minn.  213;  Fenderson  r.  Owen, 
54  Me.  374;  Stone  v.  Aldrich,  43  N.  H.  52; 
Simpson  V.  Kimberlin,  12  Kan.  579;  Jenkins 
V.  Cooper,  50  Ala,  419 ;  American  Express  Co. 
V.  Schier,  55  111.  140 ;  Lowry  v.  Adams,  22  Vi. 
160;  Conover  v.  Wardell,  20  N.  J.  Eq.  266; 
Davis  V.  Shaw,  42  Md.  410;  Terrell  v.  Walker, 
69  N.  C.  244;  Pointdcxter  r.  Cmnon,  1  l)ev. 
Eq.  373;  Armstrong  v.  Burrows,  6  Watts, 
266;  Insurance  Co.  c.  Trooj),  22  Mich.  146; 
Greene  r.  Day,  34  Iowa,  328. 

■■>  Lindley  v.  Lacey,  17  C.  B.  (if.  8.)  558; 
Brady  V.  Oastler,  3  Hurl.  &  Colt.  112;  Malpas 
V.  London,  etc.,  R.  Co.,  L.  R.  1 0.  P.  336. 


WRITINGS    AND    PAUOL    EVIDENCE. 


365 


General  Rules. 


or  fraud,'  or  through  duress,*  or  was  made  in  furtherance  of  an  illegal  object,'  or 
by  persons  incapable  of  contracting,*  or  that  it  was  contingent  on  an  event 
which  is  unperformed,^  or  that  the  consideration  has  failed,*  or  that  it  has  been 
dissolved  by  a  subsequent  agreement.'  It  is  not  proposed  to  illustrate  these 
different  exceptions  by  any  statement  of  the  facts  of  the  particular  cases,  as 
these  questions  are  not  within  the  scope  of  our  examination,  which  in  this  chap- 
ter will  be  confined  to  the  cases  in  which  proof  of  usage  and  custom  has  been 
admitted  by  the  courts,  frequently  to  explain,  and  sometimes  to  change  the 
ambiguous  or  the  apparent  meaning  of  written  contracts. 

§  180.  Admissibility  of  Evidence  of  Usaere — Views  of  Mr.  Browne.  —  Mr. 
Brownk,"  referring  to  the  admissibility  of  evidence  of  usage  to  affect  written 
contracts,  says :  "  One  of  the  most  important  questions  which  falls  under  our 
consideration  in  connection  with  a  study  of  the  law  of  custom  is  as  to  the 
admissibility  of  evidence  of  a  usage  for  the  purpose  of  modifying  the  meaning 
of  a  written  contract.  This  question  has  to  be  practically  answered  upon  very 
many  occasions  in  modern  courts  of  law,  and  the  frequency  with  which  this 
matter  is  brought  under  judicial  notice  is  to  be  accounted  for  by  our  great 
commercial  prosperity,  which  has  increased  the  extent  of  our  trade  and  the 
energy  of  those  who  are  employed  in  it,  and  has  produced  an  intense  vitality  in 
relation  to  the  various  conveniences  of  transaction,  which  has  resulted  in  many 
useful  and  admirable  customs  which  may  well  become  a  part  of  the  common  law 
of  the  land.  Whenever  a  country  is  progressive,  its  laws  tend  to  improve.  But 
there  is  one  incident  of  the  improvement  of  a  jurisprudence  which  it  is  of  much 
importance  to  note  in  this  place.  As  a  country  becomes  more  civilized,  its 
criminal  laws  become  less  severe,  but  at  the  same  time  its  laws  of  evidence 
seem  to  become  less  strict.  Just  as  there  is  no  necessity  for  heavy  pains  and 
penalties  in  a  country  where  life  and  property  are  respected,  where  moral  prin- 
ciple keeps  the  hands  of  the  people  from  violence  and  from  fraud,  so,  in  a 
country  where  truth  is  common,  where  people  have  become  intelligent  enough 
to  presume  that  a  lie  is  always  a  mistake,  there  is  not  the  same  necessity  for  the 
Btrictness  of  proof  which  is  felt  in  a  less  civilized  community.    Those  who  look 


'  Collins  V.  Blantern,  2  Wils.  341 ;  Prentiss 
v.  Russ,  16  Me.  30;  Grider  ».  Clopton,27  Ark. 
244;  Horn  v.  Brooks,  61  Pa.  St.  407;  Burtncrs 
V.  Keran,  24  Gratt.  42 ;  Lull  v.  Cass,  43  N.  H. 
62;  Franchot  v.  Leach,  5  Cow.  508;  Mitchell 
V.  McDougal,  62  111.  498 ;  Jamison  r.  Ludlow, 
3  La.  An.  492;  Montgomery  v.  Pickering,  116 
Mass.  227;  Wray  ».  Wray,  32  Ind.  126;  Turner 
V.  Turner,  44  Mo.  635 ;  McLean  v,  Clark,  47 
Ga.  24. 

» Paxton  I'.  Popham,  9  East,  421 ;  Olivari 
t».  Menger,  39  Texas,  76;  Bosley  v.  Sha-iner, 
26  Ark.  280;  Miller  v.  Miller,  68  Pa.  St.  486; 
Hibbard  r.  Mills,  46  Vt.  243;  Spaids  r.  Bar- 
rett, 57  111.289;  Knapp  f.  Ilyde,  60  Barb.  80; 
Teller  ».  Green, •26  Mich.  70;  Cadwallader  ». 
West,  48  Mo.  483. 

^Benyon  v.  Xettlefold,  3  Mac.  &  G.  94; 


Waymellw.  Reed,  5  Term  Rep.  600;  Brigg8». 
Lawrence,  3  Term  Rep.  454;  Norman  v. 
Cole,  3  Esp.  253;  Chamberlain  v,  McClurg,  8 
Watts  &  S.  31 ;  Shackford  v.  Xewington,  46 
N.  H.  415;  Williams  v.  Donaldson,  8  Iowa, 
109;  Corbin  v.  .Sistrunk,  19  Ala.  203;  Wyman 
w.  Fiskc,  3  Allen  238;  .Martin  r.  Clarke,  8 
R.  I.  389;  Newsom  i-.  Thigiien,  30Miss.  414; 
Lazarc  c.  Jacques,  15  La.  An.  599;  Loppoc  v. 
Bank,  32  Md.  136. 

<  Ibid. 

'  Pierce  v.  Woodward,  6  Pick.  206;  Shu- 
gart  V.  Moore,  78  Pa.  St.  469. 

«  Foster  v.  Jolly,  1  Croinp.  M.  &  B.  707; 
Solly  V.  Ilinde,  2  Cromp.  &  M.  516. 

'  Goss  V.  Lord  Nugent,  5  Barn.  &  Adol.  64. 

*  Browne  on  Usages  A  Customs,  80. 


3»5<3 


THEIR    ADMISSIBILITY   TO    EXPLAIN    CONTRACTS. 


Mr.  Browne's  Views. 


;  ',1 


at  the  history  of  our  laws  of  evidence  will  find  ample  illustrations  of  th«  truth 
of  this  proposition,  and  one  chapter  of  that  history  might  be  written  in  connec- 
tion with  the  way  in  which  evidence  of  custom  has  been  admitted  in  courts  of 
law  to  annex  incidents  to,  and  to  explain  the  meaning  of  written  instruments.' 
*  *  ♦  The  reasons  for  the  admission  of  parol  evidence  to  explain  a  latent 
ambiguity  In  a  writing  are  clear  and  strong ;  but  where  such  an  ambiguity  can  be 
explained  by  a  reference  to  an  existing  custom,  it  is  evident  that  such  proof 
will  have  more  authority  than  that  which  would  attach  to  evidence  of  the  party's 
Intentions  at  the  time  the  instniment  was  executed,  or  of  his  particular  practice 
in  relation  to  certain  matters,  as  Indicating  what  would  probably  be  his  inten- 
tion in  framing  the  document.  In  all  cases  it  is  difflcult  to  arrive  at  a  man's 
intention;  and  the  only  possible  means  of  arriving  at  a  correct  conclusion  witii 
reference  to  his  mental  attitude  is  by  a  consideration  of  his  words  and  actions. 
These,  however,  are  apt  to  be  misconstrued,  even  if  they  are  accurately  remem- 
bered and  correctly  repeated  or  described.  On  the  other  hand,  the  practice  of 
all  men  is  easy  of  proof,  and  there  is  the  strongest  presumption  in  favor  of  tlie 
supposition  that  he  who  wrote  the  document,  the  ambiguity  of  wliicli  has  to  be 
explained,  did  what  every  other  body  was  doing  —  shaped  his  conduct  according 
to  the  manners  and  usages  of  his  time  and  district;  and  in  that  way,  if  a  usage 
can  be  proved,  the  existence  of  which  will  explain  the  ainl)iguity,  it  is  evidently 
tlie  best  means  of  arriving  at  a  conclusion  as  to  the  intention  of  the  individual, 
the  explanation  of  whose  agreement  is  in  question.  Thus  it  is  that  the  proof 
of  a  custom  in  the  explanation  of  an  ambiguity  in  a  written  instrument  is  not 
only  admitted,  but  must  be  regarded  as  parol  evidence  of  the  highest  authority. 
As  a  fact,  evidence  of  usage  has  been  admitted,  from  very  early  times,  in  expla- 
nation of  ambiguous  grants  and  charters,  and  it  has  been  decided  that  the 
construction  of  such  a  grant  is  for  the  jury,  and  not  for  the  judge.'  The  real 
object  of  evidence  under  such  circumstances  is  to  place  the  court  in  tlie  posi- 
tion of  the  parties  to  the  instrument;  and  without  the  evidence  of  usage  that 
would,  in  a  large  number  of  cases,  be  impossible.*  '  In  a  certain  sense,' 
as  Lord  Campbell  well  remarked,  ♦  every  material  incident  which  is  added 
to  a  written  contract  varies  it,  makes  it  different  from  what  it  appeared  to  be, 
iind  so  far  it  is  inconsistent  with  it.  If  by  the  side  of  the  written  contract 
loithoutf  you  write  the  same  contract  with  the  added  incident,  the  two  would 
seem  to  import  different  obligations,  and  be  different  contracts.'  *  And  in 
another  case  Mr.  Justice  Blackburn  truly  remarked :  '  You  do  not  need  the 
evidence  of  custom  unless  it  varies  the  contract,  and  makes  it  so  far  inconsistent 
with  and  different  from  that  which  it  would  be  without  the  evidence  of  the 
custom.'*  It  may  be  added,  tliat  truly  every  incident  which  is  sought  to  be 
attached  by  proof  of  usage  is  a  material  incident,  and  that,  in  fact,  it  is  really 
the  addition  of  a  term  to  the  contract  as  It  existed  in  ink.  Yet  the  law  has  gone 
on  laying  down  the  dictum  that  any  usage  which  would  have  the  effect  of  vary- 


'  Browne  on  Usages  &  Customs,  31. 

«  Baird  v.  Fortune,  7  Jur.  (n.  s.)  926; 
Wnterpark  v,  Fennell,  7  H.  L.  Cas.  650. 

3  Doe  V.  Be  visa,  18  L.  J.  (C.  P.)  628;  Beau- 
fort V.  Swansea,  3  Exch.  413;  Newcastle-on- 
Tyne  v.  Bradley,  2  El.  &  BI.  428;  Withnell  v. 


Gratham,  1  Esp.  322 ;  Wadley  v.  Bayliss,  S 
Taun.  752;  post,  Chap.  V. 

*  Browne  on  Usages  &  Customs,  32. 
»  Uumfrey  t>.  Dale,  an/e,*p.  342. 

•  liyers  v.  Sari,  3  L.  J.  (Q.  B.)  15. 


USAGE    AND    WRITTEN    CONTRACTS. 


3»)7 


Expluiuition  of  Technical  Terms. 


Ing  or  contnitUctins;,  either  expressly  or  by  implication,  the  terms  of  a  written 
contract,  is  inadmissible  as  evidence.'  Tlie  dilllculty  of  nnderstandinK  liow  a 
usage  whicli  adds  an  incirlent  to  a  written  contract  is  to  do  so  without  varying 
It,  or  without  contradicting  it  to  the  extent  tliat  tlie  assertion  of  somethinii 
concernin;?  which  it  is  silent  is  a  contradiction,  is,  to  our  mind,  very  <?reat. 
That  it  has  l)een  tlie  means  of  throwing  an  element  of  uncertainty  into  the 
minds  of  many  judges,  will  apijoar  from  the  nature  of  some  of  the  decisions.* 
*  *  *  We  cannot  see  tliat  the  princriples  of  the  law  have  suffered  by  the 
greater  breadth  wliich  is  thus  given  to  interpretation  of  documents  which  Imve 
a  decided  tendency  to  be  too  narrow  for  the  intentions  of  the  parties,  wlio, 
from  their  great  familiarity  with  the  incidents  to  the  contracts  they  are  daily  in 
the  habit  of  entering  into,  are  apt  to  leave  a  great  part  of  the  contract  under- 
stood, and  put  only  a  little  of  tlie  less  familiar  matter  into  writing.  Were  the 
law  to  refuse  to  give  effect  to  these  understandings,  it  would  really  be  refusing 
to  give  effect  to  the  real  intentions  of  the  parties  at  the  time  the  contract  was 
entered  upon.  It  would  likewise  be  throwing  difficulties  in  the  way  of  impor- 
tant transactions  which  are  often  too  urgent  to  be  fully  expressed  in  lengthy 
d  '.ments,  and  would  be  doing  sometldng  to  prevent  tlie  regenerative  effects 
ou  law  which  may  be  looked  for  from  custom.  There  Is  a  possibility  of  too  lax 
an  admission  of  custom  as  a  force  In  such  cases.  The  common  business  rela- 
tions of  others  must  not  be  regarded  as  so  stringent  as  to  bind  any  one  to  perform 
his  business  in  the  same  way.  Each  man  is  to  be  left  free  to  contract  in  what 
way  lie  pleases,  but  when  the  interpretation  of  a  usage  is  possible  in  connection 
with  a  written  agreement,  it  is  as  fair  to  conclude,  on  the  side  of  one  of  the 
parties,  that  the  contract  was  made  with  reference  to  it,  as  on  the  other  side  to 
infer  that  it  was  made  without  any  reference  to  it,  and  with  the  intention  of 
excluding  its  effect.  Thinking  thus,  we  cannot  see  that  the  law  has  suffered  in 
any  respect  from  the  extension  which  has  been  allowed  to  the  common  conduct 
as  interpreting  the  common  transactions  of  men.  Guarded  by  the  consciousness 
that  these  customs  are  apt  to  push  their  way  into  the  statute-books,  —  and  we 
believe  that  it  is  well  to  be  careful  how  they  attain  that  position,  — little  evil 
can  arise."  * 


§181.  Usagre  may  explain  Technical  or  unlntelligrible  Terms.  —  As  Horace 
has  put  it,  custom  is  at  once  the  arbiter  and  standard  of  language.  The  customs 
of  particular  classes  of  men  soon  give  to  particular  words  different  meanings 
from  those  which  they  may  have  among  other  classes,  or  In  the  community  gen- 
erally. Mercantile  contracts  are  commonly  framed  In  a  language  peculiar  to 
merchants,  and  hardly  understood  outside  their  world.  Agreements  which  are 
entered  into  every  day  in  tlie  year  between  members  of  different  trades  and 
professions  are  expressed  in  technical  and  uncommon  terms.  The  intentions  of 
the  parties,  though  perfectly  well  known  to  themselves,  would  be  defeated  were 
the  language  employed  to  be  strictly  construed  according  to  its  ordinary  mean- 
ing in  the  world  at  large.  Hence  it  was  soon  established  by  the  courts  as  a 
rule  of  construction  that  while  words  in  a  contract  relating  to  the  ordinary 
transactions  of  life  are  to  be  construed  according  to  their  plain,  ordinary,  and 


<  Menzies  v.  Lightfoot,  40  L.  J.  (Ch.)  S61; 
L.  R.  11  Eq.  459. 


'  Browne  on  Usages  &  Customs,  80. 
3  Id.  89. 


1  tt  .,  A 


!; '    J 


368 


TIIKIK   ADMISSIBILITY   TO    EXPLAIN    CONTRACTS. 


Classillcatlon  of  the  Cases. 


popular  meaning,  yet  if,  in  reference  to  the  subject-matter  of  the  coiitiiict,  \).\.v- 
ticulur  words  and  expressions  have  by  usa'^e  acquired  a  meaning  diffunuit  finm 
their  plain,  ordinary,  and  popular  meaning,  the  parties  using  tliose  words  in 
such  a  contract  must  be  taken  to  have  used  them  in  their  peculiar  scnso,  and 
that  sense  may  be  fixed  by  parol  evidence.^  In  very  many  cas(!s,  words  aiid 
phrases  which,  If  Interpreted  in  their  ordinary  dictionary  sense,  would  causf  mi 
instrument  to  be  ambiguous  or  meaningless,  may  be  read  In  connection  with 
proof  of  a  usage  so  as  to  make  the  written  contract  perfectly  Intelligibic.  Tliis 
has  been  repeatedly  done  in  courts  of  law.  Where  the  word  has  two  rai'iin- 
ings,  —  one  common,  the  other  technical, — this  evidence  is  necessary,  in  tliu 
first  place,  to  raise  the  presumption  that  the  parties  intended  to  use  it  iu  the 
latter  rather  than  in  the  former  sense,  unless,  as  we  have  said,  this  fact  can  be 
inferred  from  reading  the  whole  Instrument.'  But  plain  words  have  a  stronger 
presumption  In  their  favor  than  ambiguous  ones;  and,  therefore.  It  has  been 
laid  down  that  when  it  is  sought  to  vary  the  meaning  of  such  words,  the  evi- 
dence of  custom  should  be  very  strong.'  The  evidence  is  not  incompetent 
because  the  words  are  in  their  ordinary  meaning  unambiguous,  for  the  principle 
of  admission  is  that  words  perfectly  unambiguous  in  their  ordinary  meaning  are 
used  by  the  parties  In  a  different  sense.*  What  words  are  more  plain  and  uimm- 
biguoas  on  their  face  than  such  words  as  •«  a  thousand,"  •'  a  week,"  «*  a  day?" 
Yet,  as  we  shall  see,  "a  thousand"  has  been  held  to  mean  twelve  hundred;' 
"  a  week,"  a  week  only  during  a  portion  of  the  year;  «  "  a  day,"  only  a  working- 
day.'  And,  therefore,  words  technical  or  ambiguous  on  their  face,  or  foreign  or 
peculiar  to  the  sciences  or  the  arts,  or  to  particular  trades,  professions,  occu- 
pations or  localities,  have  been  explained,  in  a  number  of  cases  where  they  were 
employed  in  written  instruments,  by  parol  evidence  of  usage.' 

§  182.  ClaBsiflcation  of  the  Cases.  —  The  cases  in  which  evidence  of  this 
character  has  been  admitted  are  considered  at  length  in  the  succeeding  sections, 
in  which  the  adjudications  have  been  classed  on  the  basis  of  the  different  trades 
and  callings  in  which  the  usages  were  formed  and  the  different  Instruments  in 


1  ••  The  words  of  a  written  contract  are 
to  be  understood  in  that  sense  which  the 
phrase  has  acquired  in  the  trade  with  re- 
gard to  which  it  is  used.  It  is  the  prima 
facie  presumption  that  it  was  the  intention 
of  the  parties  to  use  it  in  that  sense;  and, 
having  expressed  themselves  in  a  written 
contract  making  use  of  the  phrase,  it  is 
prima  facie,  as  a  matter  of  construction  of 
the  contract,  to  be  taken  that  they  used  the 
])Ura8e  iu  the  particular  limited  sense  wliich 
it  has  acquired  in  the  trade.  That  pccu'^ir 
and  limited  sense,  if  such  an  one  had  been 
acquired,  must  be  shown  by  parol  evidence; 
and  this  having  been  shown,  then  the  pre- 
f>umption  is  that  that  was  the  sense  in  which 
the  parties  making  the  contract  used  it.  In 
order  to  introduce  this  extrinsic  evidence,  it 
is  not  necessary  that  the  phrase  should  be 
at  all,  on  the  face  of  it,  ambiguous."   Black- 


burn, J.,  in  Myers  v.  Sari,  30  L.  J.  (Q.  B.)  9; 
7  Jur.  IN.  s.)  97. 

2  Shore  V.  Wilson,  9  CI.  &  Fin.  35.5;  Attor- 
ney-General V.  Drummond,  1  Dr.  &  War. 
353;  Drummond  v.  Attorney-General,  2  H. 
L.  Cas.  837. 

3  Lewis  V.  Marshall,  1  Man.  &  G.      ' 

*  Myers  v.  Sari,  30  L.  J.  (Q.  '  ir. 
(N.  8.)  97;  Brown  v.  Byrne,  3  E              ,03. 

6  Smith  V.  Wilson,  ante,  p.  33. 

•  Grant  v.  Maddox,  15  Meo.  &  \i    737. 
I  Cochran  r.  Uetberg,  3  Esp.  121. 

8  Hill  V.  Evans,  31  L.  J.  (Ch.)  457;  Grant 
V.  Maddox,  15  Mee.  &  W.  737 ;  Barlow  v.  Lam- 
bert, 28  Ala.  704;  Smith  v.  Clayton,  29  N.  J. 
L.  357 ;  Hartwell  v.  Caraman,  10  N.  J.  Eq. 
128;  Seymour  v.  Osborne,  11  Wall.  516;  Moran 
V.  Prather,  23  Wall.  492;  Williams  v.  WoodB, 
16  Md.  220;  Eaton  v.  Smith,  20  Pick.  160; 
Broadwell  v.  Broadwell,  6  111.  699. 


CLASSIFICATION    OF    TIIK    CASK8. 


a()l> 


Addiny;  IJiii-xprcsscd  TiTms. 


;hr  iiitcrprotiition  o(  wliich  they  were  admitted.  This  arnmneiiiont  may  appour 
to  luurit  tiio  criticism  whicli  it  has  received.'  It  woiihl  seem  that  tlie  mere  fact 
tliiit  the  usages  were  In  themselves  different  would  be  nearly  as  intelliy;ible  a 
;:iound  of  classiHcation  as  tlie  one  adofited.  Nevertheless  tliis  is  the  arraiiiio- 
m<;nt  of  the  dliiesters,  and  it  must  be  admitted  that  no  really  seientidc  clas>iil- 
ciitiou  is  possible.  We  must  ask  the  reader  to  bear  in  mind  that  the  le<j;al 
piiiiciples  which  arc  to  determine  the  admissibility  or  inadmissibility  of  usa;ie> 
and  customs  by  courts  of  law  are  the  same  in  all  relations;  tiiat  there  can  be  no 
difference,  because  in  one  case  the  usajie  is  admitted  to  explain  the  meaniii;;of  a 
technical  word  In  a  manufacturer's  receipt,  or  in  another  to  expound  the  (luiii)t- 
ful  meauinj;  of  a  term  in  the  contract  of  a  carrier  or  au  insurer.  Keepin;i  this 
in  view,  the  classillcation  whicli  we  have  ad(»|  t  il  is  believed  to  be  the  best, 
because  it  renders  the  access  to  particular  precedents  more  easy  and  ready  in 
future  cases. 


..J.  (Q.  B.)9; 


§  183.  Usage  admissible  to  add  unexpressed  Terms  to  written  Contracts. — 
At  llrst  admissible  only  to  explain  the  meaninjj;  of  technichal  terms  in  written 
contracts,  tlie  ofllce  of  a  usajie  soon  became  more  extended.  It  was  not  lonu; 
bifori!  it  was  recoj^nized  by  tlie  courts  that  it  was  as  necessary  to  allow  usa.^" 
to  explain  what  was  purposely  not  said  as  what  was  carelessly  ill-expressed. 
Experience  tanjiht  that  in  tlie  hurry  and  bustle  of  bargain  and  trade,  and  in  all 
the  tniusactions  of  busy  men,  only  a  portion  of  the  real  bari^ain  was  actually 
written  out.  In  all  contracts  as  to  the  subject-matter  of  which  known  usai^es 
ineviiil,  parties  are  found  to  proccetl  witli  the  tacit  assumption  of  these  usa'j;es. 
Tliey  commonly  reduce  into  writing  tlie  special  particulars  of  their  aiireemcnt, 
but  omit  to  specify  those  known  usages  which  are  included,  however,  as  of 
course  by  mutual  understanding.'^  If,  as  was  remarked  by  .Maui.k,  J.,  in  the 
course  of  the  argument  of  one  case,'  a  party  was  to  contract  with  another  to 
convey  a  lion,  there  could  be  no  doubt  that  evidence  would  be  admissible  to 
>iiow  that  it  was  customary  to  put  animals  of  that  descripti(jn  into  cages.  And 
so  usage  was  allowed  not  only  to  explain,  but  to  add  tacitly  imi)lied  incidents  to 
the  contract  in  addition  to  those  which  were  actually  expressed.*  It  will  appear, 
from  a  comparison  of  the  cases,  that  it  is  not  an  easy  thing  to  distinguish  those 
cases  whicli  have  been  decided  on  the  ground  that  the  usages  explained  tlie 
writing,  from  those  which  have  been  looked  npon  as  adding  terms  or  incidents 
to  it.  Where  only  half  a  thing  is  expressed,  there  is  real  ambiguity  in  the 
writing,  which  can  only  be  fully  explained  by  the  addition  of  a  term  or  incident. 


'  Browne  on  Usages  &  Customs,  74. 

'  Coleridge,  J.,  in  Brown  v.  Byrne,  3  El. 
4B1.  703.  Therefore,  where  it  is  said,  as  in 
Dickinson  v.  Gay,  7  Allen,  29  (and  see  Weth- 
erill  r.  Neilson,  iO  Pa.  St.  448),  "  There  is  no 
necessity  for  such  usages,  because  if  the  par- 
ties agipc,  that  there  shall  be  a  warranty 
where  t  law  implies  none,  they  can  insert 
the  warranty  in  the  bill  of  sale;  or,  if  the 
manufacturer  sells  without  warranty,  he 
can  so  express  it,"  one  of  the  main  grounds 
for  admitting  such  evidence  is  entirely  lost 
Eight  of. 


3  Ftobertson  v.  Jackson,  2  C.  B.  412. 

■•  .Sotilichos  V.  Kemp, ;{  Kxch.  10.5;  Kemp 
son  r.  Boyle,  3  Hurl.  &  Colt.  703;  Vliut  c. 
Campbell,  13  Wis.  I'.IS;  Lord  Abingerf.  Ash- 
ton,  L.  II.  17  Kij.  358 ;  K\-  parte  Conway,  4  .\rk. 
302,367;  Buckner  t».  Koal  Kstate  Bank,")  Ark. 
536;  Worthington  v. Curd,  15  .\ik.  491 ;  Jones 
r.  Hradner,  10  Barb.  193;  Lawrence  v.  Galla- 
gher, 10  Jones  &  Sp.  309;  Wilson  f.  Randall, 
67  N.  Y.  338;  Dent  r.  North  American  Steam- 
ship Co.,  49  X.  Y.  390;  Robinson  v.  Fiske,  25 
Me.  401. 


I 


SM 


370 


THEIR  ADMISSIBILITY  TO   EXPLAIN   CONTRACTS. 


Annexing  Incidents  to  Contracts. 


Wliere  there  is  palpable  imbiguity,  tlie  effect  is  the  same.  The  addition  of  a 
term,  or  the  explanation  of  the  terms  which  are  there  written,  gives  a  meaning 
to  the  writing  which  it  did  not  possess  without  this  expert  evidence.'  Aud,  as 
will  be  seen  in  another  chapter,-'  the  usage  or  custom  must  not  be  of  a  character 
which  is  repugnant  to,  or  inconsistent  with  the  written  coplcact.  But  tiiat  it 
merely  varies  the  written  contract  is  not  enough  to  nialvc  it  inadmissible,  for  it 
is  impossible  to  add  any  material  incident  to  the  written  terms  of  a  contract 
without  altering  its  effect  more  or  less.' 

§  184.  Incidents  annexed  to  Contracts  ersnerally.  —  It  is  remarked  by  Mr. 
Brownk*  that  the  fact  that  usage  is  permitted  to  annex  incidents  to  writton 
contract.s  i.s  another  proof  of  its  relationsliip  to  tlie  common  law.  l^aw  iuincxes 
various  incidents  to  contracts,  and  these  differ  from  those  annexed  by  u>age 
only  in  the  circumstance  that  they  claim  their  own  recognition  witliout  proof, 
while  the  others  have  to  be  evidenced.  It  may  be  useful  shortly  to  allude  to 
some  of  these,  although  many  may  be  in  the  immediate  memory  of  the  reader. 
In  contracts  for  the  sale  of  estates,  whether  freehold  or  leasehold,  the  law,  in 
tlie  absence  of  express  stipulation,  it  will  be  remembered,  implies  an  undertaking 
on  tlie  part  of  the  vendor  that  lie  will  make  out  a  good  title,*  and  an  uudertakinj 
on  the  part  of  the  vendee  that  if  the  title  prove  defective,  tlie  damages  to  whicL 
he  sliall  be  entitled  stiall  be  limited  to  the  expenses  actually  incurred  in  the 
investigation,  and  shall  only  be  nominal  for  the  loss  of  the  bargain.^  So,  on  a 
demise  of  real  property  the  law  annexes  a  condition  that  the  lessor  has  a  good 
title  to  tlie  premises,  and  that  tlie  lessee  shall  not  be  evicted  during  the  term;' 
but  it  does  not  imply  from  tlie  nature  of  the  contract  a  warranty  that  the  prop- 
erty leased,  whether  it  be  a  house  or  land,  shall  be  in  a  proper  state  to  admit 
either  of  habitation  or  cultivation,  c  that  in  other  respects  it  shall  Ije  reasonably 
fit  for  the  purposes  for  which  it  is  taken."  Again :  in  relation  to  marine  insur- 
ance we  have  an  instance  of  this  legal  annexation  of  incidents.  One  of  these  is 
that  in  every  voyage-policy,  whether  it  be  on  a  ship  or  on  goods,  a  warranty  of 
seaworthiness  at  the  commencemeu*.  of  the  risk  is  implied.  Tliese  further  con- 
ditions are  also  understood  as  forming  a  ta-'t  part  of  the  contract :  that  the  voy- 
age is  to  be  commenced  in  a  reasonable  tin  .j  and  that  all  material  circumstances 
are  to  be  disclosed.  If  these  conditions  are  not  performed,  this  omission  will 
render  tlie  policy  void,  whether  the  omission  has  been  ciue  to  fraudulent  motives 
o"  not.9  We  might  add  other  illustrations,  but  these  are  sufliclent  to  show  the 
method  by  which  usage  annexes  incidents  to  written  contracts. 

§  185.  Incidents  addend  by  Usagre  cannot  establish  a  Contract.  —  But,  though 
to  a  contract  an  incident  varying  or  explaining  it  may  be  adtled  by  proof  of 
usage,  the  incident  alone  is  not  sufficient  to  establish  the  contract.    Thus,  in 


'  Browne  on  Usages  &  Customs,  63. 

=  Post,  Chap.  V. 

3  Brown  v.  Byrne,  8  EI.  &  Bl.  703. 

*  Browne  on  Usages  &  Customs,  95. 

"  Souter  I'.  Dniko,  5  Barn.  &  Adol.  992; 
Doe  r.  Staixon,  1  Mee.  &  W.  695;  Hall  v. 
Itetty,  4  Man.  &  G.  410;  (ieorge  v.  Pritchard, 
Ryan  &  M.  417. 


n  Flureau  v.  Thornhill,  2  W.  Black.  1078; 
Walker  v.  Moore,  10  Barn.  &  Cress.  416 ;  Rob- 
insonr.  'iarinan.l  Exch.855;  Worthingtonr. 
Warrington,  8  C.  B.  134. 

'  Sutton  f.  Temple,  12  Mec.  &  W.  64. 

»  Ibid.;  Hart  v.  Windsor,  12  Mee.  A  W.63; 
Smitb  V.  Marrable,  11  Mcc.  ft  W.  5. 

•  Qibson  t'.  «mith,  4  H.  L.  Oas.  393. 


USAGE  ALONE  CANNOT  MAKE  A  CONTRACT. 


371 


Nor  Supply  Disputed  Terms. 


lin.*    So,  on  a 


an  action  of  ejectment  against  a  tenant,  the  demise  being  laid  on  tlie  1st  of  Jan- 
uary, 1849,  tlie  plaintiff  claimed  that  the  defendant  entered  into  possession  of 
tlie  premises  in  1848,  as  his  tenant,  and  produced  evidence  to  establish  this. 
The  defendant,  in  order  to  show  that  the  tenancy  had  expired  at  the  date  of  the 
alleged  demise,  offered  to  prove  that  it  was  the  genei'al  usage  in  the  place  for  all 
ie&^es  to  expire  on  the  next  day  before  the  1st  of  each  January.  This  evidence 
was  admitted,  but  erroneously,  as  was  held  oa  appeal  to  the  Supreme  Court. 
"Tlie  custom,"  said  Nash,  J.,  "is  admissible  in  proof,  not  for  the  purpose  of 
establishing  a  contract,  but  to  add  an  incident  not  expressly  embraced  in  it,  and 
in  reference  to  which  the  parties  are  presumed  to  have  contracted.  Thus,  If  the 
lease  in  this  case  was  made  on  the  1st  of  February,  1849,  or  from  the  1st  of 
January,  1849,  for  and  during  that  year,  the  plaintiff  would  be  permitted  to 
show  that  by  the  usage  and  custom  of  Greenville  all  leases  made  within  the 
town,  and  so  terminating,  expired  on  the  day  preceding  the  Isl  yf  January. 
In  that  case  the  custom  would  transport  into  the  contract  an  incident  upon 
which  it  was  silent,  but  with  respect  to  which  the  parties  must  be  presumed  to 
lia^e  contracted.  But  before  the  incident  can  be  so  engrafted,  the  contract  as 
raaile  must  be  proved;  the  incident  cannot  be  used  to  establish  the  contract. 
The  expiration  of  a  lease  is  as  much  a  matter  of  contract  as  its  commencement. 
*  ♦  *  The  contract  of  lease  in  this  case  may  have  been  for  one  month,  two 
months,  or  six  months,  and  whether  the  custom  was  applicable  or  not  would 
depend  upon  the  term  agreed  for."  i 
And  see  particularly  on  this  point  the  late  case  of  Tilletj  v.  City  of  Chicago.^ 


^  18f).  That  Parties  differed  as  to  the  Usage  does  not  destroy  the  Con- 
tract.—  The  fact  that  parties  to  a  contract  had  a  diffei-ent  understanding 
concerning  the  usage  governing  it,  does  not  bring  the  case  within  the  cardinal 
rule  in  the  law  of  contracts  that  where  the  minds  of  the  parties  do  not  meet  as 
to  its  subject-matter  or  its  essential  terms  there  is  no  binding  contract,  for  the 
difference  is  only  as  to  its  legal  effect.' 


§  187.  Usage  not  admissible  to  supply  disputed  Terms.  —  Where  a  contract 
is  by  word  of  mouth,  and  the  controversy  is  not  as  to  the  meaning  of  the  terms 
used  by  the  parties,  but  as  to  what  precise  terms  had  been  in  fact  used,  evidence 
of  custom  is  not  admissible.  Thus,  in  an  action  by  a  marble -worker  to  recover 
the  value  of  a  marble  monument  sold  by  the  plaintiff  to  the  defendant,  to  be 
erected  on  the  grave  of  her  husband,  it  appeared  that  the  monument,  having  been 
tlnlshed,  was  taken  away  by  the  defendant's  son,  and  subsequently  the  plaintiff 
went  to  the  iefendant's  residence  to  superintend  its  erection.  It  was  broken  in 
the  process  of  erection,  and  the  question  on  the  trial  was  whether,  by  the  terms 
of  the  contract,  the  plaintiff  was  merely  to  make  and  deliver  a  monument  at  his 
shop,  and  to  assist  at  its  subsequent  erection,  or  whether  he  was  to  erect  it 
before  it  was  to  be  considered  as  delivered.  On  this  the  evidence  was  conflict- 
ing. It  was  held  that  evidence  was  not  admissible  to  show  what  was  meant  In 
the  trade  of  a  marble-worker  by  a  contract  to  erect  a  monument.* 


•  Moore  v.  Eason,  11  Ired.  L. 
'  Antt,  p.  806. 


UK. 


*  Scudder  v.  Bradbury,  106  Mass.  432. 

*  Sanford  v.  Kawlinga,  43  Ul.  93. 


i 


Hi 


hi 


LI- 


I-  '   * 

i 

¥ 

ll 

'    i 

hi  ■  1 5 


372 


THEIR   ADMISSIBILITY   TO    EXPLAIN    CONTRACTS. 


Contracts  of  Sale. 


§  1.S5).  Contracts  of  Sale  —  Usage  as  to  Quality  and  Description  of 
Goods.  —  In  the  various  tradfs  and  manufactures,  contracts  entered  into  for  the 
purchase  or  sale  of  goods  and  mercliandise  are  best  interpre'  d  by  the  usiucts  of 
those  trades  and  manufactures.  The  meaning  of  technical  terms,  or  of  words 
not  in  themselves  technical  except  when  used  in  a  particular  trade,  has  Ixen 
explained  by  evidence  of  usage  in  many  cases,  sometimes  where  the  question 
was  one  of  quality  or  description,  sometimes  where  it  was  one  of  quuntitv  or 
price,  or  the  like.  Thus,  in  Swett  v.  S/mmway,^  the  plaintiffs  contracted  with  the 
defendants  for  the  manufacture  of  certain  goods  described  in  the  coiitnict  as 
"all  the  horn  chains  they  manufacture."  The  defendants  contended  that  tliose 
words  implied  a  warranty  that  the  chains  should  be  made  wholly  of  horn,  and 
that  there  was  a  failure  to  comply  therewith  if  part  of  the  links  were  made  of 
hoof;  but  the  plaintiffs  were  allowed  to  show  that  chains  of  the  latter  kind  wrie 
known  as  horn  chains  in  the  market.  This  ruling,  on  appeal,  was  hi^lil  to  in- 
correct. "There  are  many  articles,"  said  Colt,  J.,  "which  are  named  Imiii 
one  of  several  different  materials  of  which  they  are  made.  A  contract,  tor 
example,  to  furnish  gold  watches  or  mahogany  furniture  would  not  be  constrnud 
to  require  the  whole  watch  to  be  of  gold  or  the  whole  piece  of  furnllure  to  be 
mahogany.  In  the  admission  of  the  evidence  offered  by  the  plaintiffs  on  tliis 
point,  the  true  rule  was  applied  by  the  court."  Similarly,  in  liohinson  v.  UnUod 
States,''  a  merchant  agreed  to  deliver  to  the  United  States  conmiissary  (k'i)art- 
ment  "  1,000,000  bushels  of  llrst  quality  clear  barley."  There  being  no  specilica- 
tion  In  the  agreement  as  t'^  the  manner  in  which  the  barley  was  to  be  delivered, 
it  was  held  in  the  Supreme  Court  of  the  United  States  that  evidence  was  ])yo\)- 
erly  admitted  to  show  that  it  was  the  custom  of  the  trade  to  deliver  grain  in 
casks.  Again :  in  a  New  Jersey  case,  a  party  agreed  to  deliver  to  another  a  ninn- 
ber  of  trees,  "  not  to  be  less  than  one  foot  high,"  and  it  was  held  competent  for 
the  defendant  to  show  that  by  the  universal  custom  and  usage  of  all  dealers  in 
such  articles  the  length  was  measured  only  to  the  top  of  the  ripe  wood,  rejeetinii 
the  green,  immature  top.' 

In  Baker  v.  Squier,*  an  action  was  brought  for  a  refusal  to  receive  goods  sold 
to  the  defendant  by  a  boitght-and-sold  note,  in  which  the  goods  were  described 
as  two  hundred  and  twenty-five  tons  "  kurty,  48  to  50  per  cent  carbonated 
soda-ash."  The  soda-ash  had  been  tendered,  accompanied  with  a  certilicato 
of  quality  from  H.  &  A.,  a  llrm  of  chemists.  The  defendants  refused  to  accept 
it,  on  the  ground  that  it  was  not  of  the  quality  called  for.  On  the  trial,  it 
was  held  competent  to  show  that  it  was  the  universal  custom  of  the  trade,  in 
contracts  for  soda-ash,  to  determine  the  quality  by  tests  by  certain  reco^inized 
chemists,  whose  certificate  was  attached  to  the  invoice  and  was  received  i)y 
dealers  as  evidence  of  the  quality,  and  that  the  firm  of  II.  &  A.  were  aniouK 
those  recognized  chemists,  and  tlieir  certificate  was  rec()gni/.(Kl  by  the  trade  as  a 
compliance  with  stieh  a  contract.  "We  think,"  said  the  Supreme  Court,  on 
appeal,  "the  custom  was  properly  admitted  in  evidence.  A  person  engaged  in 
a  particular  trade  is  presumed  to  be  acquainted  Avith  the  usages  of  that  trade 
and  to  contract  with  ref(!rence  to  them,  and  the  usage  of  the  trade  in  which  the 
contract  is  made  may  be  shown  to  explain  the  meaning  of  a  particular  contract, 


<  10'2  Ma^s.  105. 
s>  13  Wall.  363. 


»  Barton  v.  McKelway,  W  N.  J.  ti.  185. 
«  1  Hun,  448;  3  N.  Y.  S.  0  (J.  &  3.)  «»• 


CONTRACTS    OF   SALE. 


373 


Usage  as  to  Quality  and  Descriptiou. 


but  not  to  contradict  its  plain  terms.  The  llgures  48  to  50  per  cent  convey 
no  meaning  to  a  person  i,r:norant  of  the  s\ibject-mattcr  of  the  contract  and 
of  the  usages  of  the  trade  ui  which  it  was  made,  and  the  evitlence  of  the  cus- 
tom was  to  explain  the  meaning  of  those  terms  or  liniuvs  when  used  in  such 
a  contract,  and  did  not  tend  to  vary  the  import  of  the  contract  so  far  as  its 
terms  are  expressed."  And  vvliere  a  person,  by  written  contract,  conveyed  to 
another  "  a  certain  milk-route,  *  *  *  and  the  right  and  good-will  of  supply- 
ing twenty-six  full  eight-quart  cans  of  custom,"  it  was  held  that  the  latter  might 
show  that  the""  words,  in  the  millt  trade,  mean,  when  applied  to  sales  of  the 
triKle,tlie  righ  "'  supplying  milk  to  the  customers  furnished  and  pointed  out  by 
the  vendor  fr  •■■:-,  those  accustomed  to  buy  milk  of  him.^  So,  where  one  con- 
tnicted  to  sell  "1,170  bales  of  gambler,"  and  the  purchaser  refused  to  receive 
the  bales,  evidence  was  held  admissible  to  sliow  tluit  by  the  usage  of  the  trade 
a  bale  of  gambler  was  understood  to  mean  a  package  of  a  particular  descrip- 
tion, and  that  the  contract  was  not  satisfied  by  a  tender  of  packages  of  a 
totally  different  size  and  description.''  And  on  a  sale  of  "  18  pockets  Kent  hops, 
at  100s,"  evidence  may  be  given  that  by  the  usage  of  the  hop  trade  a  contract 
so  worded  means  100s  a  hundred-weight.' 

A  party  made  a  contract  in  the  following  form:  "  Glasgow,  28th  March,  1850. 
We  liold  one  hundred  tons  of  No.  —  pig-.i'on,  deliverable  free  on  board  to  the 
bearer  of  this  document  only  on  presentation."  In  construing  this  contract,  it 
was  held  by  the  House  of  Lords  that  it  was  proper  to  show  tluit  by  mercantile 
usage  in  Glasgow,  and  the  mode  in  which  persons  dealing  in  that  commodity 
would  construe  the  document,  "  pig-iron  "  meant  '*  Clyde  and  Dundyvan  "  iron.* 

The  English  Court  of  Appeal,  as  appears  from  a  late  case  not  yet  reported,* 
were  recently  somewhat  puzzled  to  decide  wliether  evidence  of  usage  could  be 
admitted  to  show  that,  in  the  dry-goods  trade  at  least,  "  white  "  sometimes 
meant  "black."  The  question  arose  in  an  action  for  the  infringement  of  a 
trade-mark.  The  plaintiffs  had  registered  a  trade-nrark  for  worsted  stuffs.  It 
was  advertised  in  the  Trade-Marks  Journal  of  the  13th  of  January,  1877,  iind 
was  thus  described :  "A  white  selvage  on  each  side  of  the  piece,  having  a  red 
and  white  mottled  thread  interwoven  the  full  length  of  the  selvage,  between  the 
ediie  of  the  piece  and  the  edge  of  the  "Ivage."  No  representation  of  the  trade- 
mark was  printed  in  the  journal,  as  is  usually  the  case,  but  the  following  note 
was  added  to  the  description:  "A  specimen  of  this  mark  is  now  on  view  at 
the  patent-office  musuem.  South  Kensington."  The  specimen  deposited  at  the 
mu>euni  was  an  undyed  specimen  of  the  goods  to  which  the  plaintiffs  applied 
the  mark.  The  goods  were  mohair  goods,  and  were  known  in  the  market  by  the 
name  of  "  Brilliantine."  When  sold,  they  were  dyed  black,  but  the  deposited 
specimen  was  undyed.  The  woof  of  the  whole  piece,  as  undyed,  was  white 
mohair.  The  warp  of  the  body  of  the  piece  was  black  mohair.  Tlie  warp  of 
the  selvage  was  composed  entirely  of  white  cotton,  with  this  exception :  that 


'  Page  V.  Colo,  120  Mass.  37. 

«  Goirissen  v.  I'crriii,  -i  C.  B.  (N.  8.)  681. 

»  Spioer  V.  Cooper,  1  Q.  B.  424.  "  In  this 
case  the  contract  was  cither  simply,  '  at 
100s,'  in  which  case  evidence  was  admis- 
sible to  explain  in  what  sense  such  words 
are  uned  iu  the  trade,  or  it  is  a  perfect  con- 
tract, 'at  100«  per  pocket,'  in  which  case 


evidence  is  adini.ssil)le  as  to  tlie  sense  iu 
whicli  the  trade  uiuierstoad  the  word 
•  pocket,'  so  used."  Denman,  C.  J.,  in  Spiccr 
V.  Cooper,  sui)ra. 

*  Mackeiuie  v,  Dunlop,  8  Macq.  H.  L. 
Cas.  if,. 

"  Mitchell  t:  Uenry,  noted  in  24  Sol.  J.  6*). 


ill 


■    1 

■at  I 
11 

Hi 


•  i: 


374 


THEIR   ADMISSIBILITY   TO    EXPLAIN    CONTRACTS. 


Contracts  of  Sale. 


between  the  inside  and  outside  edges  of  the  selvage,  and  at  a  distance  from  the 
inside  edge  equal  to  about  one-third  of  the  whole  width  of  the  selvage,  there 
ran  the  "red  and  white  mottled  thread"  mentioned  in  the  description  in  the 
journal.  The  appearance  of  the  undyed  fabric  was  light  gray,  witli  a  wliite 
border,  a  red  and  white  line  running  through  the  border.  When  dyed,  the  wJKjle 
fabric  (including  the  selvage)  appeared  to  be  black,  but  the  selvage  was  not  of 
so  deep  a  black  as  the  rest  of  the  piece.  The  red  and  white  thread  bcuiuue, 
when  dyed,  of  a  very  dingy  hue,  but  was  perfectly  distinguishable.  The  defend- 
ants  manufactured  goods  of  a  similar  description,  using,  however,  in  tiieir 
selvage  a  mottled  thread  of  three  colors^ red,  yellow,  and  white  —  iusteiul  of 
two,  and  placing  this  thread  along  the  inside  edge  of  the  selvage.  Whin 
undyed,  their  goods  were  of  a  darker  gray  than  those  of  the  plaintiffs,  and  tiie 
selvage  was  rather  gray  than  white.  When  dyed  black,  there  was  scarcely  any 
difference  between  the  appearance  of  the  plaintiffs'  and  the  defendants'  good<, 
except  in  the  position  of  the  mottled  thread  in  the  selvage,  thougli  the  defend- 
ants' selvage  was  of  a  somewhat  ligiitcr  hue  than  the  plaintiffs'.  Tlie  plaintiffs 
alleged  that  the  defendants'  selvage  was  an  imitation  of  theirs,  and  by  their  writ 
they  claimed  an  injunction  to  restrain  the  defendants  from  infringing  it.  Tlie 
plaintiffs  moved  for  an  interim  injunction  until  the  trial  of  the  action,  luid 
Jessei.,  M.  R.,  refused  the  application,  holding  that  there  had  been  no  infriuL'e- 
ment.  He  said  that  the  plaintiffs  had  registered  a  white  selvage  as  their  trade- 
mark, while  they  were  actually  using  a  black  selvage.  This  was  fatal  to  tluir 
claim.  Moreover,  the  defendants  were  using  a  black  selvage,  and  that  could 
not  be  an  imitation  of  what  the  plaintiffs  had  registered,  which  was  a  wlute 
selvage.  There  was  also  the  difference  between  the  defendants'  mottled  thread 
and  that  of  the  plaintiffs'.  Evidence  had  been  adduced  to  prove  tliat  the  sel- 
vages actually  used  t)y  the  plaintiffs  and  the  defendants,  though  nearly  blue  k  in 
appearance,  were  known  in  the  trade  as  white  selvages.  But  his  lonlsliip 
refused  to  look  at  this  evidence,  and  said  that  nt)  amount  of  evidence  would 
convince  him  that  black  was  white.  He  accordingly  dismissed  the  motion  with 
costs.  The  Court  of  Appeal  (James,  Cotton,  and  Thesiger,  L.JJ.)  were  of 
opinion  that  this  was  not  the  proper  mode  of  disposing  of  the  case.  They  held 
that  the  plaintiffs  ought  to  be  allowed  to  show  by  the  evidence  of  experts  tliat 
the  term  '•white  selvage,"  as  understood  in  the  trade,  would  include  the  selvage 
actually  used  by  the  plaintiffs. 

Evidence  of  usage  among  dealers  has  been  admitted  to  show  the  meaning  of 
"  season,"  in  a  contract  to  purchase  and  deliver  corn  •'  on  board  our  boats  tlie 
coming  season ;  "  '  to  show  the  meaning  of  "  product,"  in  an  instrument  which 
recited:  "Received  from  teams  in  our  pork-house,  No.  114  West  Harrison 
Street,  280  hogs,  Avelghing  45,545  pounds,  the  product  of  which  we  promise  to 
deliver  to  the  order  of  Messrs.  Stevens  &  Bro.,  indorsed  hereon.  G.  &  J.  Stew- 
art; "  '  to  show  the  meaning  of  "  good  custom  cowhide  boots,"  in  an  agreement 
to  pay  for  a  number  of  those  articles  at  a  certain  price ;  •'  to  show  what  is  called 
for  on  a  contract  to  deliver  "  winter-strained  lamp-oil,  "♦  and  on  a  contract  to 
deliver  "  good  merchantable  hay;"^  to  explain  the  moaning  of  "  prime  log^ 


.  iiti 


'  Myers  t'.  Walker,  24  111.  n.3. 
s  Stewart  i\  Smith,  'I'.)  111.  ;i<.t7. 
s  Waite  r.  Fiilrlianks,  lliayt.  77. 
*  Hart  f.  Ilaninielt,  is  v.  IJT. 


'  Fitch  V.  Carpenter,  43  Barb.  40. 
6  Spring  V.  Cockbuin,  19  Upper  Canada C. 
P.  63. 


CONTRACTS    OF   SALE. 


375 


Usajie  as  to  Quantity  and  Price. 


to  show  that  tlie  words  "  witli  all  faults,"  in  a  contract  for  the  sale  of  hides, 
mean  all  that  are  not  inconsistent  with  the  identity  of  the  goods;  '  that,  under  a 
contract  to  build  a  "  dr.  tvbridge,"  it  is  the  common  understanding  among  per- 
sons skilled  in  bria„o-building  that  the  bridge  should  be  so  constructed  as  to  be 
easily  turned  in  two  or  three  minutes  by  one  man;  *  that  "  cider,"  in  a  contract 
of  sale,  meant  the  juice  of  the  apples  as  soon  as  pressed;  ^  that  "  gas-flxtures," 
in  a  contract,  did  not  include  meters;  *  that  a  certain  glass  is  known  In  the  mar- 
ket as  "German  cylinder  glass;"*  that  "300  bales  S.  F.  drills,  7j,  100  cases 
blue  do.,  8|,"  mean  the  first  quantities  at  seven  and  a  quarter,  and  eight  and 
three-quarter  cents  a  yard;  ^  that  in  a  contract  "  to  saw  lumber,  and  to  retain 
any  spoiled,"  "spoiled  lumber"  is  such  as  is  rendered  unmarketable;'  that 
"mess-pork  of  Scott  &  Co."  means  raess-pork  manufactured  by  Scott  &  Co. ; » 
that  oil  is  "wet"  if  it  contains  any  water,  however  little.*  And  the  following 
terms  in  written  contracts  of  sale  have  been  explained  by  parol  evidence  of 
usage:  "Pitch-pine  timber  of  average  quality;  "  '"  "  copper-fastened  vessel;  "  " 
"No.  llog;"'^  "good  team,"  in  a  contract  for  a  mower  which  should  be 
"capable,  with  one  man  and  a  good  team,  of  cutting  and  raking  off  from  twelve 
to  twenty  acres  of  grain  a  day;  "  "  "  best  E  x.  F.  F.  madder ;  "  '*  "  150  tons  soft 
English  lead,  of  W.  P.  &  W.  brand ;  "  '*  "  fresh  seed,"  in  a  contract  for  onion  seed. '« 


§189.  Same  —  Usa^e  as  to  Quantity  and  Price.  —  So  as  to  quantity  and 
price.  In  Goodrich  v.  Stevens,^''  the  defendant  and  one  Smith  entered  into  a 
written  contract  in  these  words:  "Bought  of  H.  P.  Smith  his  crop  of  flax, 
200,000  pounds,  at  25  cents  per  pound,  dressing  to  be  equal  to  best  of  last 
year's  work."  An  action  being  brought  for  the  defendant's  refusal  to  receive 
and  pay  for  two  hundred  thousand  pounds  of  flax  tendered  by  Smith,  the 
plaintiff's  assignor,  it  appeared  that  the  flax  which  Smith  had  tendered  was 
not  all  raised  by  him,  —  about  one-half  had  been  bouglit  of  other  persons,  —  but 
he  held  the  whole  two  hundred  thousand  pounds  at  the  time  of  making  the  con- 
tract. The  defendant  justified  his  refusal  on  the  ground  that  the  contract 
called  for  two  hundred  thousand  pounds  of  flax  raised  by  Smith  himsilf.  Tlie 
plaintiff  thereupon  offered  evidence  to  siiow  that  by  tlie  usage  in  this  trade  the 
words  "  my  crop  "  and  "  his  crop  "  are  used  to  signify  the  amount  of  the  cur- 
rent year's  production  which  the  party  contracting  to  deliver  has  on  hand  at  the 
time  of  making  the  contract,  by  purchase  as  well  as  by  production;  but  the 
court  excluded  it,  and  the  plaintiff  was  nonsuited.  On  appeal,  the  ruling  was 
reversed,  the  Supreme  Court  holding  that  the  evidence  should  have  been  received. 
In  Afiller  v.  Stevens,^'*  the  plaintiff  contracted  to  sell  to  the  defendants  "  1,000 
barrels  of  petroleum  oil,"  and  it  was  held  competent  to  show  that  the  word 


'  Whitney  v.  Board  man,  118  Mass.  243. 

'  Railroad  Co.  v.  Smith,  21  Wall.  2fi2. 

'  Studdy  V.  Sanders,  .5  Barn.  &  Cress.  62& 

♦  Downs  V.  Sprague,  1  Abb.  App.  Dec.  550. 
'  Mixer  r.  Coburn,  11  Mete  559. 

»  Salmon  Falls  Man.  Co.  v.  Uoddard,  14 
How.  446. 
"  Harris  r.  Uathbun,  2  Keyes,  312. 

•  Powell  r.  Ilorton,  2  Bing.  N.  C.  668. 
«  Warde  v.  Stuart,  1  C.  U.  (n.  s.)  88. 
"•  Jones  V.  Clarke,  i  Hurl.  &  N.  n\ 


11  Shepherd  v.  Kain,  5  Hani.  &  Adol.  200; 
Schneider  r.  Heath,  3  Camp.  'lOii. 

12  Biisch  V.  Pollock,  41  Mich.  ti4.    And  sec 
Hopkins  t'.  Sanford,41  Midi.  243. 

1^  Sanson  v.  Madison,  15  Wis.  144. 
i<  Dana  r.  Fiedler,  1  K.  I».  Sniitl),  4(!3. 
15  Pollen  r.  Le  Uoy,  10  Itosw.  38;  30  \.  V. 
54!>. 
'«  Ferris  v.  Clomstock,  33  Conn.  .113. 
"  5  Lans.  230. 
11^  100  .Mass.  518. 


:l       it 


i 


THKia    ADMISSIBILITY    TO    EXl'LAI.V    COXTKACTS. 


Con  tracts  of  Sale. 


i  -M 


I 
■ 

I 


I 


i; 


"barrel  "  meant  a  vessel  of  a  certain  capacity,  and  not  the  statute  mta^uic  of 
capacity. 

The  principal  case  of  Smith  v.  ir«7so»'  has  l)een  followed  in  Missouri.  In 
Soulier  v.  Kallerni'in,''  decided  in  1853,  the  plaintiff,  allos^ins  that  he  l)oiiLrht  of 
the  defendant  4,000  shinfiies,  and  that  he  received  ei^ht  bundles,  which  contniiic.! 
only  2,500,  and  that  he  had  paid  for  4,000,  brou;?ht  suit  to  recover  the  value  of 
the  1,500  not  delivered.  The  defence  was  that  by  the  custom  of  the  lumber 
trade  two  packs  of  a  co>-tain  size  are  regarded  as  1,000  shingles,  and  are  alway> 
bought  and  sold  as  such  without  any  count  of  the  number,  and  that  the  ciijlit 
bundles  delivered  to  plaintiff  were,  according  to  the  custom,  properly  reckoiu'd 
as  4,000  shingles.  The  defendant  asked  tlu;  court  to  declare  the  law  to  be:  "  l. 
That  if  the  shingles  sold  to  the  plaintiff  were  in  ordinary-sized  packs,  and  that 
the  price  paid  was  a  reasonable  one  for  such  kinds  of  packs,  and  that  such 
packs  are,  by  common  custom,  sold  two  for  a  thousand,  then  the  Plaintiff  is  not 
entitled  to  recover.  2.  If  the  common  custom  of  the  lumber  trade  is  to  sell  two 
bunches  of  shingles  as  a  thousand,  witliout  regard  to  actual  count,  then  the 
plaintiff  must  be  presumed  to  have  had  notice  of  such  general  custom,  and  to 
have  purchased  accordingly."  This  the  court  refused,  but  declared  that  "  if  the 
contract  was  at  so  much  per  thousand,  and  not  so  much  per  buiulle,  and  no 
express  agreement  was  entered  into  that  two  bundles  should  represent  a  thou- 
sand, then  the  defendant  must  deliver  the  four  thousand,  or  else  account  to  the 
plaintiff  for  their  value."  On  appeal  to  the  Supreme  Court,  this  ruling  was  de- 
clared to  be  erroneous  and  the  judgment  reversed.  "The  usage  of  a  particular 
trade,"  said  Ga.vblk,  J.,  who  delivered  the  opinion  of  the  court,  "  is  evidence 
from  which  the  'ntention  and  agreement  of  the  parties  may  be  imi)lied;  and 
although  it  cannot  control  an  express  contract,  made  in  such  terms  as  to  he 
entirely  incosiustent  with  it,  yet  in  express  contracts  the  terms  employed  may 
have  their  true  meaning  and  force  best  understood  by  reffo-enco  to  such  usiiifc 
Evidence  of  such  u  sage  is  admitted,  not  to  vary  tlie  terms  of  an  express  con- 
tract or  to  change  the  obligation,  but  to  determine  the  meaning  and  obligation 
of  the  contract  as  made.  The  usage  must  appear  to  be  so  general  and  will 
established  that  knowledge  oi  it  may  be  presumed  to  exist  among  those  dealinij; 
in  the  business  to  which  it  applies;  so  that  the  contract  of  the  parties  may  he 
taken  to  have  been  made  with  reference  to  it.  In  this  country,  many  articli!> 
which  are  in  terms  sold  by  the  bushel  (a  dry  measure  containing  eight  gallons) 
are  in  fact  sold  by  weight,  the  bushel  being  understood  to  mean  a  certain  uuni- 
ber  of  poinids,  and  the  number  of  pounds  differing  in  different  articles  —  as, 
salt,  wheat,  etc.  When  such  custom  becomes  general  aiKl  well  established,  so 
as  to  be  known  to  the  community,  it  is  obvious  that  a  contract  for  a  given  num- 
ber of  bushels  must  mean  the  bushel  as  ascertained  by  weight,  whether  in  fact 
the  number  of  pounds  of  the  article  sold  would  measure  more  or  less  than  the 
real  bushel."  The  judge  then  cites  Smith  v.  Wilson,  and  proceeds:  "In  the 
present  case,  there  was  evidence  that  a  general  custom  prevailed  in  the  lumber 
trade  of  estimating  two  packs  of  shingles  of  certain  dimensions  as  a  thousand 
shingles,  without  reference  to  the  number  of  pieces  in  the  pack.  If  such  was  the 
usage  of  the  trade,  so  general  and  well  established  that  those  buying  and  selllns; 
might  be  presumed  to  deal  in  reference  to  it,  there  does  not  appear  to  have  been 


>  Ante,  p.  335, 


>  18  Mo.  505. 


CONTRACTS    OF   SALE. 


377 


Usage  as  to  Quantity  and  Price. 


mi'ii^uri'  of 


an}'  such  contract  shown  in  this  case  as  would  prevent  tlie  nsai^c  from  applyin'.^. 
The  law  commissioner  seems  to  have  thouiilit  that  tiie  defendant  could  not 
escape  from  liability,  if  the  contract  was  at  so  much  per  thousand,  unless  there 
\v!is  an  express  agreement  that  tv)  bundles  siiould  represent  a  thousan  1.  Thi> 
was  an  incorrect  statement  of  the  law  in  a  ca>e  where  evidence  wa'^  uiven  of  a 
iTi'iuTal  usage  that  a  thousand  shingles  meant  two  i)acks  of  certain  dimensions. 
Wliether  there  was  as  full  evidence  of  the  usage  given  as  ought  to  have  been 
iiiven,  is  not  a  question  upon  which  we  pass ;  but  there  was  evidence  of  the  usage 
upon  which  the  i)arty  was  entitled  to  have  the  law  differently  declared  if  the 
evidence  proved  the  usage  as  general,  well  establishi'd,  and  known,  so  that  con" 
tracts  might  be  presumed  to  be  made  with  reference  to  it.  It  was  not  necessary 
that  the  defendant  should  show  an  express  agreement  that  two  bundles  should 
represent  a  thousand."  Where  a  contract  called  for  "sixty  thou>*aud  cubic  feet 
sr|iiare  white-oak  lumber,"  a  custom  in  the  market  to  reject  fractions  of  a  foot 
in  its  measurement  was  held  admissible'  Where  logs  are  to  be  sold  at  a 
certain  price  for  so  much  lumber  as  they  are  "estimated"  to  make,  the  mode 
of  estimating  is  to  be  shown  by  custom.'^  Again:  A.  agreed,  in  writing,  to 
deliver  to  li.  live  hundred  tons  of  cop|)er  ore,  to  be  paid  for  at  certain  specilled 
prices  per  ton,  according  to  the  quality  of  the  ore,  to  be  ascertained  by  an  assay 
thereof,  "the  moisture  to  be  deducted,  as  usual,  from  the  weight  of  the  ore." 
15.  claimed  that  uuiler  the  contract  A.  was  bound  to  deliver  a  quantity  of  ore 
weighing  five  hundred  tons  after  deducting  for  the  moisture,  while  A.  insisted 
that  he  was  only  bound  to  deliver  five  hundred  tons  of  ore,  gross  weight,  without 
niiy  deduction  for  the  moisture,  and  that  the  proviso  in  regard  to  such  deduction 
related  only  to  the  mode  of  ascertaining  tlie  weight  of  ore  to  be  paid  for.  It  was 
held  that  either  party  might  show  a  custom  in  the  sale  of  coi)per  ore  corre- 
.sponding  with  their  respective  claims  as  to  the  construction  of  the  contract.' 

It  is  competent  to  show  by  commercial  usage  tluit  the  words  "net  balance" 
mean  the  balance  of  the  proceeds  after  deducting  the  expenses  incident  to  the 
sale;*  that  the  words  "terms  cash,"  in  a  bill  of  goods,  imply  that  a  discount 
would  be  made  if  it  was  paid  in  six  months;  ^  that  the  words  "  consigned  (i  mo." 
mean  that  the  goods  were  conslLined  if  returned  in  six  months,  but  that  if  not  so 
returned  they  were  regarded  as  sold;"  that  "about"  so  many  tons  of  hemp  has 
a  definite  meaning  when  used  in  a  delivery  order; '  that  a  contract  for  the  sale 
of  gold  "short"  means  a  sale  of  that  which  the  seller  does  not  at  the  time  have, 
but  which  he  expects  to  be  able  to  purchase  at  a  lower  price ; "  that  on  a  contract 
for  lumber,  in  tlie  phrase  "one  thousand  feet  in  each  raft,"  the  words  "one 
thousand  feet"  mean  linear  measure;  *  that  the  word  "honored"  means  paid, 
and  not  accepted,  in  the  phrase  in  a  merchant's  letter,  "when  the  bills  are  duly 
honored;"'"  that  upon  a  note  payable  in  cotton-yarn,  at  "wholesale  factory 
prices,"  a  certain  discount  is  allowed  by  manufacturers  and  dealers."     So,  parol 


1  Merrick  v.  McNally,  20  Jlich.  ;i7t.  And 
see  McUraw  r.  Sturgeon,  2',»  .Mich.  426. 

■  Heald  r.  Cooper,  S  Me.  ;>2. 

'  Humplireysville  Copper  Co.  v.  Vermont 
Copper-MiniiiK  Co.,  33  Vt.  !I2. 

*  Kvaiis  V.  Wain,  71  I'a.  St.  09. 
»  Ueoige  V,  Joy,  19  N.  H.  !>«. 

•  Ibid. 


■  Moore  V.  Canipl)ell,  10  Kxch.  ?,-2o. 

8  Applciuan  v  Fisher,  31  .Md.  .")10. 

»  Itrciwn  f.  Hi-ooks,  -r)  I'a.  St.  210. 
10  Liieas  v.  Groriiiig,  7  Taiiii.  101. 

"  Avery  r.  Stewart,  2  Conn.  fi'.).  "Those 
wonts,  I  confess,"  said  (ioulii,  J.,  in  this 
case,  "would  seutn  to  nie  prima  fmie  t.o 
import  the  actual  wholesale  market  priees 


i  ■       .1 


i 


lif 


'AU 


THEIll    ADMISSIBILITY   TO   EXPLAIN    CONTKACIVS. 


Miscellaneous  Cases. 


evidence  of  usage  has  been  admitted  to  show  the  meaning  of  "your  wool,"  in  a 
written  offer  to  buy  "your  wool,  16s  per  stone,  deliverable  at  Liverpool;"'  to 
siiov,  the  meaning  of  tlie  words  "  ex  boats  Spencer  and  Gait,"  in  a  contract  for 
•'  two  boats  Western  mixed  corn  in  B.'s  stores,  Clinton  Wharf,  ex  boats  Spencer 
and  Gait ;"  '^  to  show  tlie  meaning  of  "  season,"  in  a  contract  for  the  delivery  of 
grain  "the  coming  season;"'  of  "month;"*  of  "for  shipment  in  June  or 
July ;"  *  of  "  to  be  paid  for  in  from  six  to  eight  weeks ;"  ^  of  "  on  freight ;" '  of 
"l)ale;"*  of  "six  per  cent  off  for  cash."* 

So,  a  usage  of  selling  certain  goods  at  a  discount  may  be  shown  to  explain  an 
item  in  an  account.'" 

Abbreviations  and  ambiguous  expressions  as  to  price  in  a  written  contract  aro 
properly  explained  by  proof  as  to  the  customary  meaning  of  such  characters  or 
contractions.  Thus,  in  one  case,  "40  of  3  —  58s;"  "  in  another,  "  live  [ler  C' m 
advance;"'^  in  another,  "best  madder,  12^;"''  in  another,  "at  the  rate  o 
100 -f- dolls,  per  ton;"'*  in  another,  "cost;"'*  in  another,  "cost  price;""'  in 
anotiier,  "  cas,"  "  were  interpreted  by  evidence  of  usage. 


§  190.  Same  —  Other  Cases.  —  In  many  other  cases  of  mercantile'  contracts 
of  sale,  evidence  of  custom  has  been  admitted  in  accordance  with  the  rin  - 
laid  down  by  Wilde,  C.  J.,  in  Spartali  v.  Benecke,^^  viz.:  that  it  is  ((Uii- 
petent  (1)  to  prove  that  the  words  in  which  the  contract  is  expressed,  in  the 
particular  trade  to  which  the  contract  refers,  are  used  in  a  peculiar  sense,  and 
different  from  the  sense  which  they  ordinarily  import;  (2)  for  the  purpose  of 
annexing  incidents  to  tlie  contract  in  matters  upon  which  the  contract  is  silent; 
Qo)  botli  these  rules  being  subject  to  the  limitation  or  qualification  that  tlie 


at  the  factory.  But  if  this  or  any  other  sim- 
ilar term  is  by  tlie  common  consent  and 
general  usage  of  all  dealers  in  a  particular 
branch  of  business  used  in  a  different  sense, 
and  so  umlerstood  by  their  customers,  there 
can  be  no  reasonable  objection  to  a  party's 
proving  it  by  parol.  It  is  like  the  eonimon 
case  of  any  term  of  measure  or  (luantity 
used  in  jiarticular  branches  of  business  in  a 
Bcnse  different  from  the  common  one,  and, 
like  any  other  latent  ambiguity,  may  be 
explained  by  parol  evidence." 

1  Macdonald  i-.  I.ongbottom,!  E1.&B1.975. 

»  Hay  V.  Leigh,  4S  Uarb.  393.  And  see 
Rhoades  v.  Castner,  12  Allen,  130. 

3  Myers  v.  Walker,  .24  111.  133. 

*  Simpson  v.  Margiston,  11  Q.  B.  32. 

5  Alexander  v.  Vanderzee,  L.  H.  7  C.  P. 530. 

«  Ashforth  v.  IJedford,  f..  U.  »  C.  P.  20. 

'  Cutwater  v.  Nelson,  20  Barb.  29. 

8  Taylor  v.  Briggs,  2  Car.  &  P.  525. 

^  Linsley  v.  Lovely,  26  Vt.  123. 

If  Sager  v.  Tupper,  38  Mich.  258.  The 
plaintiff  in  this  case  sought  to  recover  the 
sum  of  I1T4.35  as  the  amount  he  hail  paid  for 
a  belt  he  purchased  for  defendants.  A  bill 
for  this  belting  had  been  made  out,  in  which 
the  price  appeared  to  be  $174.35.    There  also 


appciired  upon  this  bill  the  words  and  lig- 
ures,  "less  expense  account,  ?l7.4t'i;"  ami 
this  amount  was  claimed  to  be  a  (liscunit 
from  the  regular  price-list.  One  of  the  wit- 
nesses called  by  defendants  was  asked,  after 
testifying  that  he  had  purchased  lealliei' 
belting,  the  custom  relative  to  selling  belling 
at  a  discount  from  the  price-list.  This  was 
objected  to  as  irrelevant  and  immaterial, 
but  the  court  permitted  the  question,  and 
its  ruling  was  approved  on  appeal. 
"  Cooper  V.  Smith,  15  Kast,  103. 

15  Cole  V.  Wendel,  S  .Johns.  IIG, 
'3  Dana  v.  Fiedler,  12  X.  Y.  41. 

"  Taylor  v.  Beavers,  4  E.  D.  Smith,  215. 

16  Gray  v.  IIari)er,  1  Story,  574.  And  see 
Buck  1).  Hurk,  IS  \.  V.  :i:i7. 

'«  Herst  t'.  Comeau,  1  Sweeny,  .590.  Tlie 
term  "cost"  is  a  relative  one,  and  differs  in 
its  meaning  according  to  the  circumstaiwes 
under  which  it  is  used.  Thus,  the  cost  price 
to  an  importer  is  one  thing;  to  a  jobber  or 
middleman,  another;  to  a  retailer,  another; 
and  to  a  purchaser  from  a  retailer,  still 
another. 

''Meaning  "cashier."  Farmers  and  Me- 
chanics' Hank  v.  Day,  13  Vt.  36. 

•«  IOC.  B.  212. 


CONTRACTS   OF   SALE. 


•  x: 


MiscollamiOiis  Usaiit's. 


to  explain  an 


peculiar  sense  or  meaning  which  it  is  proposed  by  the  evidence  to  attach  to  the 
words  of  the  contract  must  not  vary  or  contradict,  either  expressly  or  by  impli- 
cation, the  tenns  of  the  written  Instrument. i 

In  Spartali  v.  Benecke,''  decided  in  the  English  Court  of  Common  Pleas  in 
1850,  a  contract  for  the  sale  of  thirty  bales  of  goats'  wool  contained  the  follow- 
f.^M        ing  stipulation:  "  Customai'y  allowance  for  tare  and  draft,  and  to  be  paid  for  in 
cash  in  one  month,  less  five  per  cent  discount;  "  and  evidence  was  hold  inadmis- 
sible to  show  that,  by  the  usage  of  that  trade,  sellers  selling  under  such  con- 
tracts were  not  bound  to  deliver  the  goods  without  payment.     "The  objection 
to  the  admissibility  of  the  evidence,"  said  Wildk,  C.  J.,  "is  that  the  incident 
sought  to  be  annexed  by  such  evidence  is  inconsistent  with  and  contradictory 
to  the  express  terms   of  tlie  contract,  and  by  those  terms,  if  not  expressly, 
certainly  by  implication,  excluded.    The  contract  states,  in  terms,  the  precise 
time  when  the  price  is  to  be  paid,  —  Mb  :a  month,'  —  and  to  require  payment 
beiu'e  that  time  is  obviously  inconsistent  with  that  stipulation."     But  this  case 
was  subsequently  criticised  in  the  Court  of  Exchequer  Chamber.^     In  Lucms  v. 
Bmioio,*  decided  in  the  English  Court  of  Common  Pleas  in  1858,  the  plaintiffs 
sold  to  the  defendants  "  fifty  tons  best  palm-oil,  expected  to  arrive,"  "  per  the 
Chalco,"   "at  £40  10s  per  ton,"  "wet  dirty,  and  inferior  oil,  if  any,  at  a  fair 
allowance."    The  oil,  on  arrival,  was  found  to  contain  only  one-fifth  of  the  best 
oil,  and  tlie  defendant  refused  to  accept,  whereupon  the  plaintiff  brought  his 
iicMon.     It  was  a  question  as  to  what  was  the  intention  of  the  parties,  and  it 
was  taken  that  in  entering  into  the  contract  they  had  purposely  left  undefined 
what  was  to  be  the  proportion  of  "  wet,  dirty,  and  inferior  oil."     As  Eumc,  J., 
remarked,  "They  were  both  engaged  in  the  palm-oil  trade,  and  would  be  aware 
that  there  was  great  doubt  as  to  the  proportions  of  good  and  inferior  oil  in  each 
cargo;  and,  therefore,  they  may  well  have  made  the  contract  on  the  understand- 
ing that  such  portion  should  not  be  specified."    There   was   one   established 
usage  in  the  palm-oil  trade  as  to  what  proportions  would  satisfy  a  contract  to 
deliver  "best"  palm-oil,  and  evidence  of  this  usage  was  admitted  to  explain 
what  was  left  undefined  in  the  contract.     So,  by  a  contract  made  at  S.,  be- 
tween A.,  who  resided  in  that  place,  and  B.,  who  resided  in  London,  B.  sold 
to  A.  a  cargo  of  St.  Giles  Marias  wheat,  free  on  board  at  a  French  port.     The 
grain  was  unknown  at  S.,  but  was  shown  to  be  known  elsewhere  in  the  trade  to 
contain  a  mixture  of  barley.     But,  although  sucli  evidence  was  offired  at  tlic 
trial,  the  judge  refused  it  unless  it  could  also  be  shown  that  the  fact  was  well 
known  at  S.    This  ruling  was  held  to  be  erroneous.*     Cockhnrn  v.  Alexander,'' 
decided  in  the  Common  Pleas  in  1848,  is  hardly  reconcilable  with  these  rulings 
and  with  the  current  of  authority.    There,  a  ship  was  chartered  to  bring  home 
a  cargo  of  wool,  tallow,  bark,  and  other  merchandise.     The  bark  was  not  to 
exceed  fifty  tons,  the  tallow  and  hides  not  to  exceed  eighty  tons,  and  the  ship 
was  to  deliver  the  same  on  being  paid  freight  as  follows :  "  For  wool,  one  penny, 
lia'.f-pcnny  per  pound,  and  one  penny,  lialf-penny,  and  one  eighth  of  a  penny  per 
pound  unpressed."    For  the  other  three  articles  separate  rates  were  fixed,  and 


■mers  and  Me- 


'  Wilde,  C.  J.,  in  Spartali  v.  Benecke,  10 
.  B.  212. 
'  Supra. 
'  See  Field  v.  Lelean,  0  Hurl.  A  N.  617. 


■"  El.  m.  &  El.  !t«7. 

■  Ryder  v,  Wooley,  10  Week.  Rep.  294. 

f  6  C.  B.  791. 


]]\ 


'.i 


I  ■■ :'  1 


s 


380 


THEIR    AO.MIS81HIL1TV   TO    KXPLAIN    CONTUACTiS. 


MiscelliUU'oiis  I'sji-jes. 


the  captiiin  was  to  siuii  l)ills  of  liidiiiir  at  any  rate  of  frt'ijjht  without  prejudice 
to  the  charter-party.  The  .ship  returned  witli  a  full  ear<?o,  c()n'<i>tiii^  (,f  .,  sinull 
portion  only  of  wool,  and  the  residue  tallow,  bark,  hides,  and  other  Uixai  mer- 
chandise.  The  court  held  that  there  was  no  ambiguity  ii|)on  the  face  of  tiie 
contract,  and  refused  to  receive  parol  evidence  for  the  i)uri)ose  of  showing  tlmt, 
by  the  custom  of  the  place  of  loadiufi,  the  cost  of  prcssin*;  wool  was  to  he  bo'uc 
by  the  ship-owner.'  In  FowkdH  wLamh,'^  a  written  contract  for  the  s;ileof  ^oods 
was  silent  as  to  the  time  for  which  warehouse-room  rent  was  allowed  hy  tlio 
seller  to  the  purchaser,  and  it  was  held  competent  to  show  this  fact  liy  cvidfiir,! 
of  custom.  "The  written  contract,"  said  Blackuikn,  J.,  "is  (piite  silent  as 
to  any  allowance  of  warehou,se  rent,  but  it  was  open  to  either  side  to  show  that 
by  general  custom  a  certain  allowance  for  warehouse  rent  was  IncorporattU  iu 
all  such  contracts.  The  plaintiff,  who  was  willing  to  allow  one  mouth's  rent, 
called  evidence  to  prove  that  one  month  was  the  amount  of  the  ciistoiiijuv 
allowance.  It  was  open  to  the  defendant  to  call  evidence  to  prove  thai  tlie 
custom  was  to  allow  two  months,  but  lu;  did  not  seek  to  do  this.  Wliat  ho 
desired  to  do  was  to  prove  thtit  though  the  written  contract  was  silent  as  to 
any  allowance  of  rent,  the  parties  had,  by  word  of  mouth,  agreed  to  make  a 
certain  allowance  different  from  the  customary  allowance.  This  was  an  attempt 
to  add  to  the  written  contract  by  parol,  and  such  evidence  was  not  admissible. '" 
This  case  is  an  instructive  one,  as  showing  the  greater  value  of  evideiiee  of 
usage  over  that  of  any  other  kind  of  parol  evidence.  In  Fii'ld  \  Lplain,^  deeid.  .1 
in  the  Exchequer  Chamber  in  18(!1,  upon  the  purchase  and  sale  by  l)roker<  of 
shares  in  a  mine,  they  signed  bought-and-sold  notes,  the  former  of  which  was  iu 
these  terms :  "  Bought  T.  F.  -W^j  shares  in  Wheal  Charlotte,  at  £2  5*'  per  share, 
£")(!2  10s  for  pa}'ment,  half  iu  two  months  and  half  in  four  months."  In  an 
action  for  not  accepting  the  shares,  evhlence  of  a  usage  amongst  brokers  that 
on  tlie  sales  of  mining-shares  the  seller  is  not  bound  without  c(Miteniporaneous 
payment,  was  held  admissible  to  show  that  the  defendant  was  not  entitled  to 
have  the  shares  which  he  had  bought  from  the  plaintiff  delivered  to  hlni  before 
payment,  although  by  the  bought-and-sold  notes,  payment  of  the  price  was  to  be 
made,  lialf  iu  two  and  half  in  four  months,  and  nothing  was  there  said  as  to  the 
time  of  delivery.  In  that  case  it  was  argued  that  the  case  of  Spartali  v.  Benecke ' 
was  directly  in  point  in  favor  of  tlie  defendant,  and  Williams,  J.,  in  his  judjj;- 
nient,  said:  "It  may  be  observed  that  iu  that  case,  although  the  written  instru- 


'  Mr.  Browne  criticises,  and,  wc  think, 
justly,  the  conclusion  in  this  case.  Might 
not  such  proof,  he  asks,  have  Ijcen  written 
into  tlie  written  contract  without  niiiking  it 
nonsensical,  or  inconsistent  with  itself,  and 
is  not  that  the  true  test  of  its  admissibility? 
Dues  not  the  knowledge  that  there  was  such 
a  usage  in  this  case,  just  as  in  the  otiters, 
introduce  an  ambiguity  from  the  fact  tliat 
the  written  contract  docs  not  say  enough? 
To  us  there  seems  nothing  in  the  nature  of 
this  contract  which  should  have  been  re- 
garded as  impliedly  excluding  such  i)roof. 
We  can  quite  understand  that  such  an  im- 
plication may  arise.    We  know  that   it  ia 


only  in  trades  which  have  a  settled  course 
of  business  that  usages  can  exist;  if,  there- 
fore, a  transaction,  even  altliougli  in  tlie 
course  of  such  a  trade,  deviated  from  tlie 
ordinary  course  of  that  trade,  —  if  it  was  un- 
usual ill  any  of  its  incidents,  —  llieii  the  pre- 
Bum|)tion  that  the  parties  had  hnvn  acting 
in  the  light  of  ordinary  custom  would  not 
arise,  but  a  presumiition  of  a  contrary  nat- 
ure would  be  the  ruling  thought.  Browne 
on  Usages  *  Customs,  fiit. 

s  31  L.  J.  (Exch.)  IGS;  3  Jur.  (N.  S.)  335. 

»  6  Hurl.  A  N.  617;  Godts  v.  Rose,  17  0.  B. 
229. 

«  10  0.  B.  212. 


i. 


CON  TRACTS    OF   SALK. 


3HI 


Miscellaneous  Usages. 


Mit  projiidice 
11,1?  uf  a  small 
ler  loiral  iiht- 
e  lac.'  uf  tht! 
Hliowinii  that, 

IS  to  In;  bo'-iii' 

sale  of  Hoods 

lowi'd  hy  tlit» 

t  l>y  I'vidciicii 

Liito  sllciil  as 

to  show  thai 

-•orporateU  iu 

month's  reut, 

lie  custoiiiarv 

rove  that  tlie 

is.    Wliat  ho 

s  silent  us  to 

ed  to  make  a 

as  an  attempt 

adiuissjlili'." 

f  evideiicf  of 

li'dH,^  deeid.-d 

hy  hrolaM's  of 

which  was  iu 

')S  per  share, 

ths."     In  an 

brokers  that 

eniporaneous 

)t  entitled  to 

to  him  before 

ice  was  to  be 

aid  as  to  the 

U  V.  Bi'necke ' 

in  ills  judu;- 

ritten  instru- 


settleil  course 
xisl;  if,  tlieri!- 
tlioui,'li  ill  tlie 
iited  from  tlie 
—  if  it  wasuii- 

then  thu  pre- 
.d  Ijoeii  acting 
,om  would  not 

contrary  uat- 
iglit.    Browue 

.  (\.  S.)  335. 
Rose,  17  0.  B. 


ment  of  sale  wiis,  mntatis  mutandis,  the  same  siihstaiitially  as  in  tlie  present,  the 
iisa^e  relied  on  was  different.  In  the  present,  it  was  simply  that  the  delivery  is 
to  take  place  at  the  appointed  time  for  paymant,  and  not  before.  In  Spurtali 
V.  Bcnecke,  the  usage  relied  upon  was  tluit  the  delivery  was  to  Im  at  the  option  of 
the  buyer,  and  that  he  might  require  it  at  any  time  before  the  appointed  day  of 
payment,  but  in  no  case  without  payment  of  the  price.  Therefore,  it  was  a  case 
where  I  apprehend  that  Wildk,  C.  J.,  in  his  judgment,  treated  the  usage  as  vary- 
ing the  time  for  payment  expressed  in  the  statement  of  the  contract,  inasmuch 
as,  according  to  that  usage,  tlie  delivery  intended  by  the  contract  migiit  take  place 
so  as  to  give  the  seller  a  right  to  call  for  payment  before  tlie  time  specilled  in 
the  written  instrument.  But  according  to  the  usage  proved  in  the  present  case 
DO  delivery  can  be  required,  or  is  intended  to  take  place,  before  that  time  arrived. 
If  Spartali  v.  liencckc  cannot  be  distinguished  in  tliis  way,  I  agree  it  ouglit  to  be 
overruled."  In  another  case,  proof  that  by  a  custom  of  trade,  when  timi)er  is 
sold  in  bond  at  a  sale  by  auctiim  in  London,  the  buyer  contracts  to  Ijuy  at  a 
price  including  the  duty  payable,  and  he  may,  by  giving  notice  on  the  following 
(lay  so  to  do,  elect  to  take  the  timber  in  bond,  and  if  he  does  so,  he  is  then  only 
bound  to  pay  the  price  less  the  duty,  was  admitted  under  the  fijllowing  circum- 
stances:  On  the  10th  of  February,  1860,  the  defendant  bought  timl)er  in  liond  at 
a  sale  by  auction,  at  a  price  including  the  duty,  the  contract  to  be  com|)leted 
within  fourteen  days,  and  the  Chancellor  of  the  Exchequer,  on  the  evening  (d 
that  day,  gave  notice  that  a  resolution  would  be  moved  in  Parliament  to  reduce 
the  duty  on  timber,  and  carried  out  that  resolution  on  the  8th  of  March.  An 
act  of  Parliament  passed  to  that  effect  on  the  5th  of  May,  and  the  reduction  of 
the  Uity  was  thereby  made  to  date  from  the  8th  of  March.  On  the  11th  of  Felj- 
ruary  the  defendant  gave  notice  to  the  seller  that  he  elected  to  take  the  timber 
in  bond,  and  on  the  24th  of  February  offered  tlie  price,  less  the  then  duty,  wliieli 
the  seller  refused  to  take,  and  he  also  refused  to  give  a  delivery  order  for  the 
timber.  He  subsequently  brought  an  action  for  the  price  of  the  timber,  in  wliieli 
judgment  was  given  for  the  defendant,  on  the  ground  that  tlie  usage,  wliicli  was 
admitted,  adiled  a  term  to  the  contract.' 

In  a  packer's  receipt  for  goods,  containing  the  phrase,  "  Received  on  account 
of  Bowman  &  Lay,/oc  J^.  Makinsan,^^  the  words  "  for  J.  Makiiison,"  being  am- 
biguous, were  explained  at  tlie  trial  by  evidence  of  the  usage  of  trade.  "There 
is  an  ambiguity,"  said  Abixciku,  C.B.,  "in  the  language  of  the  iustrumcnt;  the 
defendant  is  to  hold  them  for  one  person,  and  yet  on  account  of  another.  I 
think  this  falls  within  the  general  rule  that  upon  a  mercantile  instrument  you 
may  give  evidence  of  usage  in  explanrtion  of  an  ambiguous  expression."  ^  So, 
evidence  of  custom  may  be  introduced  to  show  that  a  person  whose  name 
appears  at  the  liead  of  an  invoice  as  vendor  is  not  in  fact  a  contracting  party.' 
And,  as  a  case  where  an  Invoice  was  explained  by  usage,  Schricber  v.  Ilurslcjj  * 
deserves  attention.  The  action  v.as  for  goods  sold  and  delivered,  the  defence 
being  that  the  time  of  credit  had  not  expired.  Tlie  goods  were  sold,  accom- 
panied with  an  invoice  which  contained  tlie  following  memorandum  as  to  terms  : 
"Terms,  £2  10s  per  cent  monthly."  On  the  trial,  the  defendant  proiiosed  to  give 
evidence  to  show  that  under  this  invoice  he  was  at  liberty  to  draw  a  bill  at  the 


i 


'  Clark  V.  Smallfield,  4  L.  T.  (N.  s.)  405. 
■  Biiwman  v.  Horsey,  2  Man.  &  R.  85. 


3  Holding  V.  Klliott,  6  Hurl,  ft  N.  117. 
*  11  Jur.  (N.  s.)  676. 


w 


^i 


i 


J 


;  <! 


i 

If  I  * 


ill 


382 


THKIK   ADMIS8IB1L1TY    TO    EXPLAIN    (  ONTKACTS. 


Principal  and  Ascnt. 


expiration  of  tlie  first  two  montlis,  or  to  leave  it  an  open  account  anrl  hac  the 
option  of  paying  at  one-third  of  £2  10s  per  cent  discount,  and  at  tlie  expiration 
of  the  third  month  for  set  cash,  but  the  learned  judge  refused  to  admit  it,  anil 
the  plaintiff  had  a  verdict.  The  defendant's  counsel  afterwards  moved  for  a 
new  trial,  on  the  ground  that  the  evidence  was  improperly  rejected,  saylnti  that 
the  defendant  was  prepared  to  prove  that  £2  10,s  per  cent  was  tlie  govcrniu" 
discount,  and  tlmt  the  buyer  paying  at  the  end  of  two  months  was  entitled  to  it, 
and  was  at  liberty  to  give  a  bill  at  three  months,  or  to  open  an  accuunt  ou  a 
graduated  scale  of  discount  —  two-thirds  at  the  end  of  two  months,  one-lliird  at 
three.  He  contended  that  the  custom  of  the  trade  proved  that  such  was  the 
meaning  of  the  words.  A  rule  nisi'  was  therefore  granted,  which  was  afterwards 
made  absolute,  for  a  new  trial,  Martin,  B.,  saying:  "The  invoice  is  not  the 
contract,  but  Is  only  evidence  of  It.  It  Is  couched  In  language  which  is  not 
intelligible  witliout  some  explanation,  and  I  think  we  ought  to  receive  as  com- 
plete an  explanation  as  possible."  In  an  action  for  the  price  of  tobacco  sold, 
evidence  is  admissible  to  show  that  by  the  established  usage  of  tlu;  tobacco 
trade  all  sales  are  by  sample,  although  the  bought-aud-sold  notes  were  entirely 
silent  on  this  point.' 

§191.  Principal  and  Agent  —  Usage  and  Custom.  —  In  the  leading  case  of 
Humfrey  v.  Dale,''  the  plaintiff,  a  broker,  brought  an  action  against  the  defend- 
ant, a  broker,  upon  a  written  contract  for  the  sale  of  oil.  In  wliich  neitlior  of  the 
principals'  names  was  set  forth,  and  proved  a  custom  in  the  trade  that  when  a 
broker  purchased  without  disclosing  the  name  of  his  principal  he  was  liable  to 
be  looked  to  as  principal;  and  the  Court  of  Exchequer  Chamber,  aftlrniiug  the 
judgment  of  the  Queen's  Bench,  held  that  the  evidence  was  admissible,  on  the 
ground  that  it  added  to  the  contract  a  tacitly  Implied  Incident'  In  Hutchinson 
V.  Tatham,*  the  defendants,  acting  as  agents  for  a  person  of  the  ii?me  of  Lyons, 
with  his  authority  chartered  a  ship  for  the  conveyance  of  a  cargo  of  currants 
from  tlie  Ionian  Islands.  The  charter-party  was  expressed  to  be  made  and  wag 
signed  by  the  defendants  as  "  agents  to  merchants,"  the  name  of  the  principal 
not  being  disclosed.  At  the  trial,  evidence  was  tendered  on  the  part  of  the  plain- 
tiff, and  admitted,  of  a  trade  usage  that  if  the  principal's  name  is  not  disclosed 
within  a  reasonable  time  after  the  signing  of  the  charter-party,  in  such  case  the 
broker  shall  be  personally  liable.  •  The  jury  found  that  tliere  was  such  a  custom, 
and  that  the  name  of  the  principal  had  not  been  disclosed  within  a  reasonable 
time.  The  question  for  the  court  was  as  to  the  admissibility  of  the  parol 
evidence;  and  tlie  judges,  while  restating  the  doctrine  that  no  such  evidence 
would  be  admissible  to  contradict  the  plain  terras  of  a  document,  held  that  it 
was  the  law  that  you  might,  by  evidence  of  custom,  add  a  term  not  Inconsistent 
with  any  term  in  the  contract,  and  that  the  evidence  which  was  admitted  at  the 
trial  was  rightly  admitted.  In  Fleet  v.  Murton,^  the  defendants  were  fruit- 
brokers  in  London,  and  were  employed  by  the  plaintiffs,  who  were  merchants, 
also  in  London,  to  sell  for  them.    The  defendants  gave  to  the  plaintiffs  the  fol- 


1  Syers  v.  Jones,  2  Exch.  Ill;  Boormanv. 
Johnston,  12  Wend.  566;  Oneida  Man.  Co.  v. 
Lawrence,  4  Cow.  414. 

*  Ante,p.Ui. 


»  El.  Bl.  &.  El.  1004. 

«  L.  R.  8  C.  P.  432. 

•  L.  B.  7  Q.  B.  126,  antt,  p. 


PKINCIl'AL    AND    AGENT. 


383 


Mlscellaiioous  Ususes. 


and  have  tiie 
the  expiration 

admit  It,  and 

moved  for  a 
fd,  sayinjt  that 
tlie  goveniniT 

entitled  to  it, 

account  ou  a 
i,  one-lliird  at 

such  was  the 
fas  afterwards 
ce  is  not  the 

wldcli  is  not 
jceive  as  oom- 

tobacco  sold, 
if  the  tobacco 

were  entirely 


eading  case  of 

St  the  defend- 
neitlier  of  the 

e  that  wlien  a 
was  liable  to 

,  aflirming  the 
sible,  on  the 

[n  Hutchinson 
me  of  Lyons, 
o  of  currants 
nade  and  was 
the  principal 
t  of  the  plain- 
not  disclosed 
such  case  the 
uch  a  custom, 
a  reasonable 
of  the  parol 
uch  evidence 
held  that  it 
inconsistent 
initted  at  the 
were  fruit- 
re  merchants, 
Qtiffs  the  fol- 


lowing contract-note:  "We  have  this  day  sold  for  your  account  to  our  princi- 
pal." Then  followed  a  statement  of  the  number  of  tons  of  raisins,  signed 
Murton  &  Webb,  brokers,  25  Mincing  Lane.  Tiie  defendants'  principal  having 
accepted  part  of  tlie  raisins,  and  refusing  to  accept  the  rest,  the  plaintiffs 
brought  an  action  ou  the  contract  against  the  defendants,  and  endeavored  to 
make  the  defendants  personally  liable,  by  giving  evidence  that,  In  tlie  London 
fruit-trade,  if  tlie  brokers  did  not  give  the  names  of  their  priiici|)als  in  the 
contract  they  were  held  personally  liable,  although  in  fact  they  contracted  as 
brokers  for  a  principal.  It  was  held  that  the  evidence  of  the  custom  was  not 
inconsisteut  with  the  written  document,  and  Cockbuhx,  C.  J.,  said:  "For, 
altliough  where  a  party  contracts  as  agent  there  would  not,  independently  of 
some  further  bargain,  be  any  liability  on  him  as  principal,  yet  if  a  man  — 
though  professing  on  the  face  of  the  contract  to  contract  as  agent  for  another, 
and  to  bind  his  principal  only,  and  not  himself  —  chooses  to  qualify  that  contract 
by  saying  that  he  will  make  himself  liable,  though  he  is  contracting  for  another, 
and  giving  to  anotlier  rights  under  the  contract,  he  himself  will  incur  the  same 
liai)ility  as  the  principal.  Now,  although  where  a  party  professes  to  contract  as 
broker  it  might,  prima  facie,  be  taken  that  he  contracts  without  the  intention  of 
incurring  liability  on  his  own  part,  yet  if  by  the  custom  of  the  particular  trade 
there  is  tliat  qualification  of  tlie  contract  which,  if  written  into  the  contract 
in  extenso,  would  undoubtedly  bind  him,  that  qualilication  may,  I  think,  be  im- 
ported into  the  contract  by  evidence  of  the  custom."  And  evidence  is  admissible 
to  show  that  the  word  "agent,"  in  the  piano  trade,  includes  those  who  buy  and 
sell  pianos  on  their  own  account. ^ 

In  Allen  v.  Sutidius,-  the  defendants,  a  firm  of  ship-brokers,  being  employed 
by  an  agent  of  the  French  government  to  procure  for  them  the  charter  of  two 
sliips,  a  person  named  Laraont,  who  was  also  a  ship-broker,  informed  tlie 
defendants  of  two  ships,  called  the  New  York  and  the  Glasgow,  which  could  be 
chartered.  After  considerable  negotiation  and  a  good  deal  of  correspondence 
between  the  three,  —  Lamont,  the  defendants,  and  the  owners  of  the  ships,  —  the 
New  York  was  chartered  for  three  months,  and  the  following  letter  was  tliere- 

upon  written  by  the  defendants  to  Lamont :  — 

"London,  November  10,  1854. 
"Mr.  B.  Lamont,  Liverpool. 

"  Sir  :  In  consideration  of  your  having  introduced  us  to  Mr.  Langlands,  and 
assisted  us  in  procuring  the  charter  for  the  screw  steamship  New  York,  we  hereby 
engage  to  allow  you  two  and  a  half  per  cent  (2i)  out  of  our  commission  as  we 
receive  it.  Your  obedient  servants, 

"Smith,  Sundius  &  Co." 

Subsequently  the  Glasgow  was  also  chartered,  and  the  charter  of  the  New 
York  was  renewed  for  another  six  months.  The  assignees  of  Lamont  then 
claimed  commission  at  the  same  rate  on  the  charter  of  the  Glasgow,  and  also 
on  the  renewed  charter  of  the  New  York,  and  on  the  trial  proposed  to  prove  a 
usage  of  trade  among  ship-brokers  by  which  an  "introducing  broker"  was 
entitled  to  share  the  commission  on  all  renewals  by  the  same  parties  of  charters 
effected  through  his  introduction;  but  the  chief  baron  rejected  it,  being  of 
opinion  that  it  was  inconsistent  with  the  agreement  contained  In  the  letter  to 
Lamont,  and  the  plaintiffs  took  a  nonsuit.     In  the  Court  of  Excliequer,  a  rule  for 


i 


'  Whtttemore  v.  Weiss,  33  Mich.  343. 


•  1  Hurl.  4  Colt.  128 


w 


1 1    I 


S' '  «^jj 


)tJ 


384 


THEIR    AD.MISSIBILITY   TO    EXPLAIN    CONTRACTS, 


Principal  and  A<jjent. 


anew  trial  was  made  absolute.  "I  am  of  opinion,"  said  Brvmwkm,,  J.,  "that 
the  rule  oufiiit  to  be  absolute.  There  are  *  vo  questions,  both  of  avIiIcIi  I  shall 
briefly  advert  to.  One  arose  thus:  The  bankrupt  Laniont  said:  'I  iiitioducctl 
you,  the  defendants,  to  certain  ship-owners,  and  you  procured  a  charter  for  thi m 
from  the  French  government;  and  part  of  the  bargain  between  us  was  tliat  I 
was  to  receive  a  portion  of  your  commission,'  viz.,  £2  10s  .-er  cent,  wlii'h  I 
believe  is  the  ordinary  commission  allowed  to  'introducing  brokers,'  as  Laimmt 
was  called.  Lamont  also  said:  'The  French  government  has  renewed  the 
charter  with  tlie  ship-owners,  and  you,  the  defendants,  have  received  a  rcpctiiiim 
or  renewal  of  your  commission  upon  this  renewed  charter,  and  I  claim  from  vou 
a  repetition  or  renewal  of  my  commission,  and  I  will  prove  there  is  a  cii>tt)in 
which  entitles  me  to  make  that  claim,'  Evidence  to  that  effect  was  teiulciril 
.md  rejected  by  my  lord,  I  think,  erroneously.  There  is  no  doubt  about  tiie 
principle.  A  custom  may  be  annexed  to  documents  with  which  it  is  not  iiicDii- 
sistent.  The  question  then  is,  whether  this  custom  is  inconsistent  with  the 
written  agreement  between  Lamont  and  the  defendants.  If  inconsistent,  or 
incoherent  with  the  agreement,  it  cannot  be  annexed  to  it.  It  seems  to  iiie  it 
would  be  coherent  with  it,  because,  as  I  understand  the  bargain  between  Lamont 
and  the  defendants,  it  was  this:  *I  will  receive  from  yon  £2  lOs  por  ccni  as 
my  share  of  your  commission.'  To  my  mind,  there  would  have  been  iioiliini; 
inconsistent  if,  that  being  in  writing,  the  writing  had  gone  on  to  say,  '  not  only 
upon  the  tlrst  charter,  but  upon  any  renewed  charter  in  respect  of  wliicii  vou 
may  get  any  commission  from  the  ship-owners.'  Whether  the  evidtnci  .  if 
admitted,  would  have  proved  that  agreement  it  is  not  necessary  to  say.  I  tiiink 
such  a  custom  ought  to  be  naiTowly  watched;  but  nevertiieless  I  thinli  that, 
according  to  law,  the  evidence  was  admissible.  The  other  point  was  this:  It 
was  said  by  Mr.  Karslake  that,  independently  of  any  c  istom,  it  was  a  (|U(-ti(m 
for  the  ji.ry  whether  the  bargain  between  Lamont  and  the  defendants  did  not 
extend  to  the  Glasgow  as  much  as  to  the  New  York.  I  think  there  was  evidence 
to  that  effect  which  ought  to  have  been  submitted  to  the  jury.  In  my  opinion, 
therefore,  on  both  points  the  plaintiffs  are  entitlcil  to  have  the  rule  made  abso- 


lute. 


Mahtin,  B.:  "I  am  of  the  same  opinion.     The  facts  of  th.e  ca'-c  are 


these:  The  bankrupt  Lamont,  who  formerly  carried  on  business  as  a  -hip-hrokcr 
at  Liverpool,  was  examined  on  behalf  of  the  plaintiffs,  his  assignee^-,  ami  his- 
evidence  was  that,  in  November,  1854,  he  came  to  London  and  hatl  an  interview 
with  Duncan,  one  of  the  partners  in  the  defendants'  house,  and  he  then  com- 
municated to  Duncan  that  he  knew  of  two  vessels,  t'i  New  York  and  thi' 
(ilasgow,  which  might  be  chartered  by  the  French  government  (for  wliom 
tl'c  defendants  were  authorized  to  act  by  Messrs.  Pastrie,  tlu>  ager.ts  of 
tliat  government),  and  that  Duncan  agree<l  that  he  siiouUl  shave  the  com- 
mission witli  the  defendants  with  respect  to  those  two  vessels.  Tiiat  way 
what  Lamont  proposed;  nd  he  persevered  in  staling  that  he  was  to  have 
one-half  of  t'le  commission.  Tin  re  was,  inerefore,  liis  jiositive  evidence  to 
that  effect,  but  there  was  also  a  variety  of  letters  and  commiinieatioiis 
between  him  and  the  defendants  and  the  Glasgow  and  Xew  Yorl<  Steamship 
Company,  which  were  to  a  degree  inconsistent  with  it;  antl  I  should  not  have 
been  surprised  if  the  cause  liad  gone  to  the  jury  nor  shall  I  be  surpriseti, 
should   the  case  be  again  tried,  if  the  jury  find  they  do  not  believe  parts 


TKINCIFAL    AND    AOEM'. 


o85 


Miscellaneous  U.stiges. 


■:r.L,  J.,  "that 
which  I  sliiill 
'  I  iiitrodiiccd 
irter  for  tlniu 
us  was  that  [ 
cent,  whijh  [ 
's,'  as  Laninnt 
rencwfMl  tlio 
!cl  a  rciH'titioii 
laini  from  you 
e  is  a  cii>toin 
was  tendered, 
iibt  about  ihe 
t  is  not  ineon- 
itent  witli  tlie 
iconsistont,  or 
lecnis  to  me  it 
tween  Luiiiont 
).s'  per  eeiil  ;is 
Ijoeii  uothiiiu' 
say,  '  not  only 
;  of  wliieii  you 
c   evidence,  if 
■)  say.     I  think 
I  tiiinli  tiiat, 
was  tliis:  it 
as  a  ()ue>tiou 
lants  (lid  not 
was  evidence 
my  opinion, 
lie  made  abso- 
tlu!  ca^e  are 
-hip-broker 
.-nee-i,  and  liiis 
an  interview 
he  theri  eoni- 
'ork  and  tlie 
(for  whom 
he    ajien.ts  <if 
are   the   eom- 
.     That  way 
was  to  have 
1  evidiMiee  to 
mmunieatioiis 
n'l<  Steanishi]) 
mid  not  have 
be  surpri-^ed, 
believe  parts 


of  Lament's  evidence,  and  rather  i;ive  credit  to  Iiis  writinuis.  However,  the 
question  whether  the  evidence  of  Lamont  was  true  or  false  is  for  the  jury,  not 
for  the  court.  With  respect  to  the  New  York,  his  cdaim  was  this:  that  he  was 
;i  party  to  the  employment  of  the  defendants  in  the  sense  I  have  stated,  and  he 
-wore  to  an  express  asreement  to  divide  the  comndssion  with  them.  I  e.xtertain 
111)  ddubi  that  an  '  inlrotlucing  broker '  is  entitled  to  receive,  and  does  receive, 
fidiii  tlui  '  workiiiit  broker' a  portion  of  his  (commission.     That  is  a  common 

I  rac  ici?  in  London  av.d  other  places  wliere  ships  are  chartered.  As  r(v;;ar(ls  the 
New  York,  the  plaintiffs  admit  that  Lamont  has  received  all  he  is  (Mitithul  to  in 
lopect  of   the  tirst  cliarter,  aiul  they  proposed  to  prove  a  custom  that  on  a 

Inrter  of  this  kind  bein,<i  renewed,  tlu;  'introducing  broker'  was  entitled  to 
re(;eive  a  portion  of  the  commission  payable  on  the  subse()U(;nt  charter.  Win  ther 
ilie  evidence  would  have  established  the  custom,  or  whetinr  \\iv  custom,  wln'ti 
jU'oved,  would  have  inUitled  tlu;  plaintiffs  to  recoNcr,  I  do  not  know;  but  il 
sceins  to  me  they  were  entitled  to  ^ive  evidence  of  what  Hie  custom  was,  inul  tliat 

II  was  not  competent  to  liie  jud.in;  to  rej\..;;,  it.  With  inspect  to  the  (ilasi;i)w, 
tlu!  ;  !aim  depends  on  a  different  principle.  The  lirst  co  Miiiinieation  between 
Duncan  and  Lt.inont.  look  place  on  the'  7lli  of  Noveini)er,  1851,  and  on  the  iOth  a 
wrinen  agreement  was  entered  into.  A  letter  was  written,  statim;  tin-  precise 
u-rnis  of  the  agreement  between  Lamont  and  tlu;  defiMidants  with  ri>|)ect  to  the 
Niw  York,  but  there  was  no  w  ritiiiii'  witli  respect  to  tiir  (ilasi^ow.  Now,  1  au,ree 
liiat  if  two  persons  nejjotiatiim;  a  contract  consent  to  reduce  it  to  writiiiij,,  that 
uiiiiiiii  is  conclusively  tiie  (contract.  Hut,  for  the  purpose  of  briniiiiiy;  that  rule 
;i)  hear,  it  mu.st  be  established  tliat  the  parties  meant  to  reduce  the  entir(;  con- 
liaet  to  writing;  and  if  it  be  established  that  only  a  portion  of  it  is  reduced  to 
writ inu,',  there  is  notliinu  in  law  to  prevent  evidence  beiiiu  <;ivcn  to  show  what 
liie  real  bargain  w;is.  1  am  ch^arly  of  opinion  that  the  letter  of  th'!  10th  of 
.\'o\ ember,  IS'A,  does  not  refi  r  to  Ihe  (ila--:i;ow  (assiimiiiL!;  the  parol  '  videiice 
siviii  by  Lamont  to  be  true),  and  that  it  was  intended  to  reler  to  the  Xev,  York 
only;  consequently,  puttiiii:  asidi;  the  custom  'dtoifether,  the  plaiutirf>  lia\('  a 
rislil  to  have  it  submitted  to  the  jury  wlietlier  they  a^-e  entitled  to  recover  in 
ivspect  of  the  tirst  charier  ol  the  (jlasfjow.  That  a  -.in' been  witli<(rawn  from 
llii'iii,  in  my  opinion  tiiere  oiinht,  to  be  a  new  trial,  i  am  of  this  opinion  simply 
upon  the  facts  of  the  ca.se.  There  are  letters  in  whicli  a  vast  deal  is  inconsistent 
uiili  Lamoni's  statement.  The  jury  an;  the  proper  tribunal  to  try  that,  and  in 
111)  opinion  it  was  not  competent  for  the  judiic  to  withdraw  it  from  them." 
I'oi.LocK,  0.  B.:  "I  ajjree  with  my  l)rotlier  Hua.mwki.l  that  a  custom  such  as 
tliis,  which  controls  the  written  contract  of  the  parties  and  makes  lliein  aurec 
to  soinethinj;'  wlii-ih  they  have  not  expressed,  oimht  to  be  carefully  watched,  and 
restrained  within  reasonable  limits.  .\nd  1  own  1  thiid<  that  where  oni;  bi'oki  r 
introduces  a  vessel  U>  anotlu'r,  e  custom  to  share  the  commission  so  loiii;  as  the 
vessel  shall  be  chart(!re(l  by  the  same  party,  or  indeed  by  any  other  pari>, 
thi'diiL^h  the  same  broker,  is  ot  (  xireiiudy  doubtful  leualil;  .  Hut  1  am  not  iiillii- 
'iired  in  niy  decision  by  that  coiisideiMtion.  A  eii>toiii  may,  by  evidence,  lie 
;iHa(;iied  «>  any  ordinary  coinN(!  of  l)usiness  so  as  Id  introduce  a  term  iKjt  iij('oii- 
■•i-u  lit  with  that  course  of  business:  and  nndoiiliiedly  where  one  broker  intro- 
iliices  a  vessel  to  another,  a  custom  may  be  shown  tiiat  the  lindicr  so  introdiicin?. 
it  is  entitled  to  a  s)iare  of  the  commission  on  that  particular  charter;  but  I  think 

It 


3SH 


THKIK    ADMISSIBILITY    TO    BXPLII.V    CONTKACl'S. 


Suretyship  —  Attorney  and  (Client. 


such  a  custom  cannot  be  ext?nclocl  to  a  special  agreement  betweou  the  parties 
entirely  inrtepentlent  of  the  usual  course  of  business.  If  the  relation  of  the 
parties  is  settled  by  an  agreenicnt  not  corresponding  with  the  nnual  course  of 
business,  I  think  the  custom  outiht  not  to  be  received  in  evidence.  Tlic  (a>e,  as 
before  me,  certainly  presented  that  aspect.  The  agreement  with  respect  to  the 
commission  was  entirely  out  of  the  ordinary  course  of  business,  but  bv  their 
special  agreement.  For  that  reason  I  rejected  the  evidence  that  was  offered, 
not  as  evidence  of  a  custom  controlling  every  agreement,  but  as  evidence  ot 
what  the  custom  was  in  the  ordinary  course  of  business.  It  is  clear  thai  Hi:- 
agreement  was  not  in  the  ordinary  course  of  busiiu^ss,  and  therefore  the  custom 
does  not  apply.  Of  course,  I  express  this  opinion  with  some  doubt,  after  hearing' 
that  my  brothers  Martin  and  Bi;AMW!':r.L  arc  of  a  different  opinion,  but  I  si 
think  that  what  I  did  at  Nisi  Prins  wm  correct." 

§  IDli.  Other  Cases  —  Suretyship  —  Attornay  and  Client.  —  And.  in  IikII- 
vidtial  cases,  i^vi(teuc(;  lias  iu'en  aiiiuitte  I  to  cxpouml  Llie  words  "  currene_\,'' ' 
"Canada  money,"-  '•TeAa>«  inune>,"-'  "  Kentucky  currency," <  "  Ills,  cy.,"  '  as 
used  in  negotial)le  inslrumMifs;  and  the  terms  "  bond,"''  •'  bonuwed  money,"' 
•'  Lanier  House,""  and  "  expected," "  as  used  in  other  contracts. 

In  Fox  v.  I'arkfr,^"  the  defendants  h;id  entered  into  a  contract  by  which  they 
agreed  to  be  liable  to  tiie  cxl.enl  of  .$1,0(.K)  that  one  K.  M.  i'.irker  should  accomit 
to  the  plaintiff  for  Mie  proceeds  of  paper  sent  liiin  tiy  tli;'  plaintiff  to  he  sold  on 
commission.  J'laiuliff  l)rought  an  action  for  $'.iOO,  which  he  allegeil  to  he  due 
from  E.  M.  Parker  to  him  on  account  of  paper  soKl.  The  defendants  soiiiiht  to 
be  relieved  from  liability  on  the  ground  tliat,  h\)in  time  to  time,  notes  ot  K.  M, 
Parker  had  been  taken  by  the  plaintiff  on  account  of  the  business,  ami  tliev 
claimed  tluit  in  this  way  time  had  been  exiemied  to  their  i)rinci',)al,  and  tli;il  they 
were  discharged.  Evidence  of  a  usage  am  ,i.g  ihose  engaged  in  the  business  ot 
selling  paper  on  commission  \o  give  notes  ;o  the  manufacturer  before  the  paper 
is  sold,  so  as  to  enable  him  to  raise  nione\  thereon  in  anticipation  of  tlie  sale--, 
was  held  admissible,  on  the  ground  that  such  evidence  did  not  contradict  the 
terms  of  the  written  contract,  i)ut  simply  went  to  explain  and  ascertain  the 
intention  of  tlie  parties  in  relation  to  a  ni.itler  upon  which  tae  contract  was 
silent.  So,  it  has  been  held  that  usage  ma.  piwent  a  surety  from  taii'.ng  advan- 
tage f)f  acts  which  would  otherwise  discuir^-  ii'm.  "The  lotig-e.;i'.t.inued  usage 
of  the  bank,"  said  Siiki'I.ky,  C.  J.,  in  Croshij  v.  W/yiM,"  "  well  known  to  l)oth  the 
sureties,  would  seem  to  be  as  satisfactory  evidence  of  an  assent  on  their  part  to 
an  agreement  for  delay  as  the  payment  of  interest  in  advance  would  be  of  such 
an  agrecuncnit." 

In  Boi{1ish  v.  Fox,'-  the  defendants,  a  firm  of  attorneys,  being  su<!(l  for  money 
in  tlunr  hands  received  in  satisfaction  of  a  judginLUit  rendered  for  the  plaiuiitf, 


1  I'ldmcr  r.  Stale  Hank,  10  Iowa,  ;i21 ;  Far- 
well  »•.  I'"a.v,  7  ,M'i.  J")'.!.')     I'ockrijl    r.  Kirkpat 
ric,l<,  1)  Mo.dKT;   (yliaiiiLers  /•.  (Jcorge,  1   Litt. 

-  Tliompson  v.  Sloan, '2:;  Weml.  71. 
■  Ui)l)(«rts  I'.  Shu-l,  1  Texas,  ;7.;. 
■•  l.aniplon  r.  lla;?Bai'il, :{  Mun.  14'.' 
■'  Itiilhiii't  I),  (/'arver,  ;I7  Harl).  62.     Hal    .ee 
Illinois  rases,  p).i/,  ';iia;i.  V. 


'  stone  r.  IJratlbury,  14  Mc.  185. 
"  Murray  c.  Spencer,  24  Md.  .VJO. 
'   ll.inis  r.  Dulj,  ."iT  »ia.  77 
"  U.i.l  r.  U.ivnor,  1  Mee.  A  \V.  :i4:!.    And 
Bee  FawUes  r.  I.aiiib,  \ii  L.  J.  ((j.  B.)  Sii. 
1"  44  Kurb.  t,H. 
"  23  Me.  irxi. 
ft!  .Me.  90. 


BAILMKNTH    AN!)    SALKS. 


;;«7 


Usage  to  Explain  Deeds. 


claimed  the  right  to  retain  the  whole  of  the  bills  of  cost,  exclusive  oi:  witnesses' 
fees  and  money  advanced  by  thoir  client,  the  plaintiff,  in  addition  to  the  regular 
■harge  for  term-fees  and  arguing-fees,  as  belonging  to  them  as  attorneys  in  a 
suit,  on  a  successful  defence,  by  tli(!  common  usage  of  the  bar  in  Fortlaud  for 
many  years.  On  the  trial,  they  introduced  evidence  showing  that  the  practice  in 
tlut  county  had  been  for  many  years  for  the  attorney  to  cliargi;  his  clUmt  with  a 
turni-fec  at  each  term,  excepting  the  term  at  which  the  case  was  argued,  when 
nil  arguing-fee  was  taxel  instead  tliereof;  and  in  addition  tluireLo,  \vi;en  the 
ilet'ciidant  prevailed,  to  charge  his  cliciiit.  with  the  taxal)le  costs,  cxeiusiv"  of 
witnesses'  fees  and  money  advanced  i)y  the  client.  The  plaintiff,  in  order  to 
sIkiv,  that  the  defendants  had  agreed  with  hiin  as  to  the  amount  of  their  i  hujires 
reac,  a  letter  from  them,  in  which  was  said:  "  Yours  of  tlie  .")th  inst.  \yv.  i.ave 
this  day  received.  In  answer,  liave  to  say  ttiat  the  U.  S.  (J.  C.  does  .sir.  licf-  on. 
the  1st  day  of  May  next.  We  send,  as  is  requested,  our  bill  against  you,  uuu  ii 
tho  cause  is  tried,  our  charge  for  arguing-fec;  and  services  at  the  May  term  wiT 
|..  ''ihiy  be  about  $;J0."  With  this  letter  was  sent  a  bill  of  tlie  regular  cliargev 
iituacli  prior  term,  and  cl  some  small  payments.  It  was  held  that  '.he  usage  was 
not  In  conflict  with  any  contract.  Said  Siikpi.ky,  J. :  "It  is  further  contended 
that  it  should  not  have  bcui  received,  becau.se  there  was  proof  in  th(i  letter..! 
tiio  defendants  of  a  srecial  contract  tcj  perform  the  servictis  for  an  agf  ed  cotn- 
ponsation.  The  usage  does  not  appear  to  be,  as  the  argument  suppose-.,  ,i,  ,011- 
flkt  with  the  contents  of  the  letter.  Nor  does  the  letter  show  that  Mieic  was 
a  ooinpensatior.  agreed  upon  betwe(!U  the  parties.  It  was  written  while  ;\u 
suit  .vas  j)ending,  and  states  the  charges  which  would  be  claimed  for  the  sr  i-vices 
performtid.  The  usage  does  not  present  any  other  or  different  daini  .  >  then 
existiii;;'.  It  presents  one  as  tirst  arising  upon  a  determination  of  lie  ~uii 
favoral'y  for  the  defendant." 

§193.  Bailment  or  Sale.  — So,  i  conti  let  which  on  its  face  is  a  bii;,,aeiii 
may  he  shown  to  be  a  sale.  Thus,  in  Dawsou  v.  Kittle,'  a  memorandum  ai  uiio.vl- 
eiliTiHl  the  receipt  of  a  (pnintity  of  grain  "on  freight."  These  »."jrds,  m  law, 
impoiled  a  bailment;  but  Nioi.sox,  C.  J.,  adin'tted  the  evidence  of  (kal(!rs  in 
tirain  to  show  that,  according  to  tlie  custom  iMnong  thein,  they  meant  .ui  abso- 
lute sale.  Similar  evidtuice  was  admitted  in  Goodijcar  v.  (h/deii.,-  to  explain 
till!  meaning  of  the  wo"ds  "in  store"  in  tlie  s.ime  wa\'.  Where,  on  an  aeti  ni 
for  goods  sold  and  delivered,  a  paper  in  the  following  word.-,  sii.'iied  by 
tlio  iiefeud*»U.,  \\as  introduced  as  the  contract:  "Received  of  S.  .'.()  barrels  >il 
l»i'o\;>ions  lor  account  of  1).,"  it  was  lield  that  parol  evidence  was  admissible  to 
stiew  iliuf  the  paper  did  not  mean  a  sale,  or  that  tlie  provisions  were  received  on 
auaceounl  due  I).,  i)ut  that  they  \trere  received  in  accordance  with  the  defend- 
ant's i()urs(!  of  business  to  sell  on  commission.' 

iJ  I'.H.  When  admissible  to  'explain  Deeds  — ITsag.!  is  admissible  to  explain 
ii>''  Lingiiage  of  a  deed,*  when  .jiiibiguous  or  equivocal  —  as,   for  example,   io 


'  4  Hill,  107. 
4  Hill,  104.     .\nil  see  Irwin  i\  Cliirk,  13 
Midi.  10;  C'liasi;,'.  Wushliurn    1  lUilo  St. 'JS'i; 
<  iiilisl(!  ('.Wallace,  12  Ind.  25'.';  Hughes  t». 
.sUiili'v,  45  lowtt,  B22. 


■'  .McKiiistrv  V.  Pcarsall, :{ .Fohas.  :fl(). 

^('orUilyou  V.  Vnri  ilruiidt,  2  Joliiis.  ;i5i  ; 
United  States  r.  I'echin.in,  7  I'et.  51;  Mitchell 
V  United  (ilaten,  ••  I'et.  711. 


(  ll 


^'N 


HH8 


TlilSIK    ADMISSIBILITV    TO    fOXPLAIV    CONTUACl.i. 


Words  and  Phrases  in  Donds. 


construe  the  words  "  gravel,"  '  or  "  waste  lands,"  '^  or  "  zinc,"  or  "  pr-jmisos,"  ' 
or  "colliery,"*  to  stiow  what  is  understood  as  passinij  by  tl»e  conveyance  of  a 
*' saw-mill,"  5  or  by  a  license  to  cut  "timber  for  buildinji;."  *  In  the  c:isc  (>f  a 
deed  of  a  burial-lot,  it  may  be  shown  that  it  is  customary  for  the  proprieiors  of 
cemeteries  to  have  the  exclusive  control  of  tlie  avenues  and  alleys  thcroiii;'  and 
wliere  a  deed  save  the  "  privilege  of  deepening  tlie  iliteh,"  evidenee  of  tlu.'  usual 
mode  of  deepening  ditches  was  admitted  to  explain  the  words."  A  call  in  an 
instrument  for  ♦'Clough  Overton's  survey"  may  be  shown  to  have  been  inii  nlid 
lor  the  survey  of  anotlun*  person,  but  that  at  the  time  it  was  usually  known  as 
''  (Hough  Overton's  survey."  "  Wliere  a  di-ed  described  the  boundaries  Ijctw  m 
two  mining-claims  as  "  running  thence  north  twenty-three  degrees  and  lirici'ii 
minutes,  west  six  hundred  and  forty-three  feet  to  a  pine  stake,  and  tlicnce  iiorih 
forty-live  degrees  west  to  Devil's  (^ailon,"  parol  evidence  was  admitted  to  show 
that  it  was  tlie  custom  of  the  lo(;ality  to  run  bonudary  lines  by  the  inairiii'tic 
meridian."*  So,  the  form  of  deeds  is  a  matter  of  usage."  A  purchasi-r  uud't-  a 
land  contract  that  does  not  specify  what  sort  of  deed  he  is  entitled  to,  ni:iv  tU-- 
inand  a  deed  witli  the  customary  covenants.'-  And  usage  may  prove  a  (Inli- 
catiou."  In  an  action  of  ejectment  in  Missouri  it  appeared  that  a  patent  i--nc  I 
to  A.  had  been  from  an  early  day  in  the  possession  of  W.  To  explain 
this  fact  an  1  support  a.  title  claimed  under  W.,  evidence  was  offered,  ami 
rejected,  to  show  that  it  wa  the  custom  in  early  times  in  that  State  to  a';>iuti 
duplicate  certificates  of  land  ei  tries  by  a  writing  on  the  back  of  the  ('eriilioatc, 
and  that  such  assign, neats  were  usually  recognized  as  snflieient  conveyances. 
"We  cannot  perceive,"  said  the  Sni>reme  Court,  "upon  what  principle  this 
evidenee  could  have  beim  received.  Under  the  law  of  ('onuress,  an  assif.'nnnut 
of  the  certificate  of  entry  would  have  autliori/ed  the  issuance  of  the  patent  in 
the  name  of  the  assignee,  and  if  defendant  intended  to  re'y  upon  such  assimi- 
meut,  the  evidences  offered  was  not  compettnit  toestalilish  it.  Nomas  it  admis- 
sible for  the  purpose  of  explaining  W.'s  possession  of  the  patent,  which  (■'Hiid 
avail  nothing  to  those  claiming  under  W.  unless  it  was  also  shown  lint  'ir 
became  the  possessor  of  it  by  virtue  of  an  assignment  of  the  cert itieate,  or  in 
some  other  way  recogni/.ed  liy  law  as  sudicient  to  pass  a  rigid,  to  it."  " 

In  a  case  before  Lord  Ki.iJONnoKOiKin,  in  1817,  a  scin; /(irins  had  been  hron-il 
to   repeal  a  patent    obtained   by  the  defendant     for  the  maunfadnre  of  ii.iii- 


1  lii'owii  t'.  Brown,  H  Melc.  .573. 

8  I'lallier  v.  lloss,  17  I  ml.  ■('.).".. 

'  New  .h'.rsuy  Zinc  Co.  /•.  itoMton  Frank- 
Unite  (^o.,  15  N.  J.  Kq.  41S. 

<  (Jarey  v.  ItriglU,,  ■'i8  I'u  .St.  70. 

'<  Karrar  V.  Slaokpolo,  G  Me.  151. 

"  l,ivin<?st()n  i>.  Ten  Uroccli,  10  .7olin.s.  14; 
8  Am.  Dee..  '2H7.  And  see,  Kener.-illy,  Cam- 
bridRO  V.  Lexington,  17  I'ie.k.  -i'M);  Spring- 
slcln  r.  Sampson,  ;!2  N.  Y.  70(!;  Parsons  v. 
.Millisr,  15  Wend.  502;  Krench  v.  Carhart,  1 
N.  V.  lOJ. 

"  Seymour  v.  i'ligc,  3:'  (!onn.  GO. 

'  Collins  j».  I>risc()ll,  :U  Conn.  4.1 

»  8eay  v.  Wallon,  i»  T.  U.  Mon.  :(0S. 

"  "  II  was  mil  to  <'.oiitva(lie,t  m-  vary  the 
mi.'uning  of  tliu  term  north  tliat.  the  evidence 


was  admitted,  bnl  to  a.-i<'erliiiii  tin  -on-c  ,ii 
ivliich  it  was  nM'(l  l)y  tlu^  iiarlie.-.  Tlie  I'-nii 
has  two  iiie.'iiiiii}:;';,  one  coinnioii  .iml  ilic 
other  Ice.liiiieal.  llniirnfessional  micii  u'l'ii 
orally  mean,  in  statiiij;  courses,  tlie  Inien 
indicated  by  the  coiniiass,  without  luatiiii!; 
any  allowance  for  vanalion  in  the  iicmIIi', 
and  even  professional  surveyors,  as  npiicii-. 
from  the  evidence  in  Ihis  case,  wmilil  ii"i 
consider  the  true  meriili.'in  ;is  iiilcmli' I, 
unle^-  .specially  so  infoi  ined."  I'lclil,  I., 
in  Jenny  Lind  Co.  v.  JSewcr,  II  (-al.  I'M. 

11  Kirl{(Midall  t).  Mitchell,  ^  McLean,  114. 

'2  (iaiiltv.  Van  7ale,  ;17  Mich.  21 

"  Scvcy's  Case,  0  Me.  IIH 

i«  Avery  r.  Adam-,  Ot)  Mo.  603. 


It  I 


SPOUTING    USAGES. 


:\H\) 


Illustrations. 


brushes,  which  were  (hiscribed  as  "taperiuj;-  brushes."  Tln>  spccincations 
showed  that  the  mode  of  manufaeturiuj;  the  patent  brushes  tliffered  I'roui  others, 
in  that  the  bristles  were  taken,  of  the  length  of  an  inch  anil  a  i|iiarter,  and, 
before  their  insertion  in  the  wood,  were  mixed  up  to.!j;ether  and  then  drawn 
through  the  holes  and  secured  by  a  brass  wire,  the  bristles  being  then  of  unequal 
lengili.  The  common  mode  in  use  required  the  bristles  to  be  inserted  in  the 
stock,  as  near  the  same  lengtli  as  possible,  they  l)eing  afterwards  cut  down  so  as 
to  1)0  of  the  same  length.  Lord  KiA  nouoiMiii:  "TapiM-ing  means,  gradually 
converging  to  a  point.  According  the  speeilication,  the  bristles  would  be  oT 
unc(iual  length,  but  there  would  be  no  tapering  to  a  point,  which  the  tiescrip- 
tion  assumes."  Counsel  for  the  defendant  then  stated  that  by  compressing  the 
bristles  in  each  tuft  of  hairs  the  effect  would  be  to  make  lluim  converge  to  a 
point;  and  he  suggested  that  the  brushes  were  known  by  this  description  in  the 
traclo.  iiord  Kllknuokoit*;!!  :  "If  the  word  '  tapering '  be  used  ii\  its  general 
sense,  the  description  is  defective;  there  is  no  converging  to  a  point.  If  tlw. 
term  has  had  n  diffcmit  meaiiiiKj  annexed  to  it  hy  the  us(t(/i:  of  the  trade,  it  may  he 
received  in  its  perverted  sense.  At  present,  Iiowever,  I  cannot  hold  out  any  pros- 
pect that  the  dilliculty  arising  fron)  the  grammatical  consideration  can  be 
removed."  The  evidence  afterwards  introduced  did  not  remove  the  objectiun, 
ami  Lord  Ei.lknbokoixju  advised  the  jury  to  llnd  that  it  was  not  a  '•  tapering  " 
brush,  whidi  they  diil.' 

§105.  Sporting  U«agbs. —  li^oans  v.  Prut','  declared  the  admissibility  of  a 
s|)ori:iig  usage.     The  plaiiiliff  and  def(M)iianl   had  signed  the  following  agree- 

iiienL;  — 

"  I'ltATT    AND    KVANS. 

"Tiioma^  ilolyoake,  lO^iiuire,  Umpii'e. 

"Fred-rick  Pratt  bets  Thomas   Evans  £100  to  £25,  P.  P.  (play  or  payj,  Mr. 

liyley's  brown  mare  (late  his  property)   beats  Th'>inas    Evans'  m;ir(>   .Matilda, 

(our  miles  across  a  country,  thirteen  stone  each.     To  come  off  1st  iMarch,  18tl. 

The  umpire's  decision  to  be  final. 

"Thomas  Kvans, 

"  Fi;r,i)i:ui(,'K  Puatt." 

The  race  duly  came  off  on  tlie  day  appointed,  and  Mr.  Ilyley's  brown  man. 
eame  in  first,  and  Mr.  F-vans'  Matilda  last.  I5ut  the  umpire  decided  that  the 
plaintiff's  mare  was  the  winner,  as  the  lirst  horse  had  passed  through  a  gate-wa,\ 
instead  of  going  over  the  hedge,  as  the  rules  of  st(;eple-cliasing  required.  Mr. 
Pratt,  being  (lissat\sfle<l  with  tliis  decision,  refused  to  pay,  and  Mr.  Evans  i' Te- 
upuii  brought  suit  for  tlie  £100,  when  it  was  rided  that  evidence  that,  acconling 
to  the  usage  of  sporting  men,  "  across  a  e.oinilry  "  meant  that  the  riilers  were  to 
go  over  all  obstructions,  and  were  not  at  liberty  to  avail  them.selves  oi  an  open 
gate,  was  adniissible.  "The  contract  declared  upon,  and  proved  by  Llm  nicino- 
randiim  produced,  was  tlial  the  horses  were  to  run  '  lour  niih;s  across  aconnUy.' 
This  is  an  expression  of  whii  h  we  caimot  take  judicial  notice.  Tl\i;  nuiauiug  ol 
that  expression  was  a  question  for  the  jury,  to  be  (U'cided  by  i.Ueni  iipun  the 
evlilince  before  thcin.     The  evidence  showed  that  by  iliis  e.\i)ressiou  tlie  rider 


'  l!e\  c.  Mctf.atI,  '2  Slmk.  .V.  I*.  241>. 


«  3  Man.  \.(i.  7:i'.i;  4  rteoll,  N.  II.  378. 


iip 

in 


i 


1 

w 

*  ■* 

n- 

n 

11 

lit 


390 


I'll  km:    ADMISSIBILITV    TO    KXI'LAIN    CONTKACI'S. 


linos  und   Miaiir. 


is  excliulcd  from  ridinj?  through  an  open  jjato."  So,  in  :in  early  Pomis)  Ivjiniii 
case,  ill  ii  suit  on  a  written  washer,  evidence  was  admitted  tliat,  by  the  eii-ioin  nt 
sportsmen,  when  eitlier  party  relinquislies  the  deposit  the  bet  is  at  an  eud.' 

§  lOG.  Mines  and  Mining. — In  Clayton  v.  ffrcr/sDii,'  the  custom  of  miners  was 
admitted  to  explain  the  meaning  ©f  a  word  in  a  lease  ot  a  (;oal-mine.  The  lessees 
of  a  coal-mine  had  covenanted  with  the  lessors  that  tliey  would  by  a  cerlaiii  time. 
jret  all  the  demised  coal  in  a  certain  townsliip,  "  not  deeper  than,  or  hci(uv  tlie 
level  of"  the  bottom  of  a  mine  under  a  certain  point,  at  the  surface,  fa  an 
action  for  the  breach  of  the  coveniint,  a  question  arose  as  to  what  portion  of 
th(!  coal  the  lessee  was  bound  to  set,  as  lyinfj;  "  not  deeper  than,  or  below  tlie 
Itjvel  of"  th-i  mine.  The  plaintiff  contended  that  the  word  "level"  mu.st  he 
understood  in  its  ordinary  sen.se,  but  the  defendant  maintained  that  in  t!i"  h  use 
in  ((uestion  the  word  "  level,"  according  to  the  custom  and  understaiidiui,'  of 
miners,  had  reference  to  the  drainage,  and  that  every  part  of  the  mine  which 
would  require  to  be  drained  from  a  point  lower  than  the  bottom  of  the  niine 
under  A.  was  below  the  "  level  "  of  the  bottom  there,  though  it  might  be  above 
the  horizontal  plane  passing  through  such  part  of  the  bottom,  and  offered  evi- 
dence to  prove  this  understanding.  Ai.dkusox,  J.,  who  presided  at  the  trial, 
rejected  the  evidence,  but  his  ruling  was  reversed  in  the  King's  Bench.  Lord 
Dknm.w,  C.  J.,  said:  "  We  are  all  of  the  opinion  that  the  evidence  was  receiv- 
able. The  learned  judge  who  tried  the  cause  doe.s  not  appear  to  have  had  a  ' 
strong  opinion  on  the  subject,  but  only  to  liave  put  the  question  in  the  most 
convenientcour.se  for  ultimate  decision.  Tlie  word  'level'  is  not  in  itself  a 
technical  word,  but  it  i  ■  used  in  a  particular  business  in  sucli  a  manner  that  it 
may,  consistently  with  its  general  meaning,  liave  a  i)articular  meiiniug  also.  It 
i^  a  term  which,  in  its  general  use,  may  have  more  than  one  meaning,  and  ;is  it 
is  employed  here  it  clearly  has  a  technical  sense,  and  may  properly  be  expl.tined 
by  evidence."  Littlkdalb,  J.:  "I  am  of  the  same  opinion.  The  word  is  like 
many  others  ni  the  I<]nglish  language,  which  i"ay  have  several  meaniiii^s." 
Pattkson',  J.:  "The  word  'level'  must  be  take  sccimdtDi  snbjectam  materiain. 
Here  it  is  a  term  used  in  mining,  and,  as  such  a  term,  reciuires  explanation."^ 

§  li)7.  Contracts  for  Labor  and  Materials.  —  Contracts  for  ':ihin'  to  be  per- 
formed and  materials   to  be  fnrnislied  have  uivc.i  rise  to  disputes  wliirli  on'y 


1  Morgan  r.  Itlcliard.s,  I  Hrownc,  1":;. 

2  5  Ad.  &  K.  aOi. 

3  As  to  customs  of  mininp;  iiiul  mines,  ace 
Colman  v.  (;ieincntfi,  2:5  Ciil.  ii'r,  Uoach  r. 
Gr  ir.  Cat.  ;!>»",;  I':nj,'lisli  r.  .Johnscm  IT 
Cal.  107;  (Jore  v.  Mel'.raycr,  IS  Oal.  .Mi; 
Waring  v.  Grow,  11  Cal.  ;!(!(>;  Martin  r.  So- 
liimbo,  et«'.,  Mining  Co.,  26  Cal.  !)27;  Micks  »■ 
liell,  :i  Cai.  219;  I'ro.ssor  v.  I'arks.  is  <  ;il.  47  , 
I'aclMtv  V.  Ileaton,  i»  C.il.  .WS;  Ht.  Jolin  v. 
Kidtl,  26  0«l  2(i'.;  Table  Mouatiiin  Tunnel 
Vi:.  r.  .Stranalian,  31  Cal.  :!S7.  A  califdi-nia 
statute  provides:  "In  acti  •ii'^  res|>eelins 
mining  rlsiin'*,  proof  sliull  !)>•  .ulinitied  of 
llie  customs,  usapi'-,  or  icirulallons  c-lub 
Hshed  or  in  force  t»t  the  bar  or  (lig;?injs 


einliraeiiig  such  claim;  and  siieli  customs, 
usages,  or  rcgulati.'iis,  wlien  not  in  e.diiniot 
\.ith  the  (Constitution  and  laws  of  this  st:ite. 
sli.ill  ,'fovorn  tlic  <iei',ibion  of  tlie  action." 
(Joile  I'roc.  Cal.,  5  i'd\.  And  ;<(■<•  I'.rinlley  ;. 
I.ne,  :!8  Cat.  m>:,  CorriM  v.  I''nela»,  !•:  (  J. 
:!ll:  Ilirvey  r.  I{yaii,  12  Hitl.  (i27;  Slioiin  r 
IJvii'.  W,  Cal.  :V!;  Duleh  ."at  Water  Co.  r. 
Mooney,  \i  Cal.  rdil :  .-ulliviin  r  IIon.se,  ■: 
(Jol.  424.  As  to  e.iistonis  under  llie  .Mexiean 
law,»oe  VanSeliniidt  I-.  Ili'nilngton,  l('a'.:M. 
And  see,  further.  (iold(Mi  Klefce  Co.  r.  (  ^'jle 
;;o.,  2  N«*"  ;!1J;  orf^mmno  r.  Unele  --.iin, 
ftc.Co.,  I  Nev.  2ir»;  Mallell  v.  Vnrlr  S'lm, 
etc.,  Co.,  1  Vev.  ISS;  Kinney  ••.  Consolida'.ed, 
etc.,  Milling  Co.,  4  hawyor,  'Mi 


CONTRACTS  FOR  LABOR  AND  MATERIAL>. 


;i9i 


Misc.'llaiieous  llsasies. 


of  miners  was 

.  The  lessees 
a  certain  time 
,  or  l)el(t\v  the 
irfiiL-c.  in  ;m 
lat  |)()iii(jn  of 
or  l)eluw  tlie 
vel  "  must.  1)0 
at  in  tlK!  lease 
lerstaiidinir  of 
e  mine  whicli 
n  of  tlie  mine 
i^lit  be  al)ine 
1(1  offered  evi- 
d  at  the  trial, 
Bench.  Lord 
ce  was  receiv- 
;o  have  had  a 
a  in  the  most 
10 1  in  itself  a 
laiiner  Uiat  it 
nins  also.  It 
in^,  and  as  it 
be  explained 
word  is  like 
ineaniii2;s." 
'am  miitcnan,. 
aiiation."^ 

>r  to  be  per- 
s  which  only 

surh  customs, 

not  ill  (  ipiidipt 

.1  tlii-i  stiile, 

f  llie  acllon." 

■  liriitlley  )■. 

l-'rielas,  4'>  (■.•»!. 

(i'.!T;   SI  mil)?  (■ 

t  Witter  Co.  V. 

Ill  r    lIoiiM'.  ■: 

r  tin;  .Mevii  .in 

ngt.oii,  ICa'.. ■).".. 

lU!  0(1.  r.  ( ';.ijle 

'.  Uneli'  -.un, 

V.  I'nrl.'  S'tm, 

Coiisoli(l:i'ed, 


evidence  of  usa;;e  couhi  settle.  In  Jurdan  v.  Meredith,'  decided  by  the  Supreme 
Court  of  Pennsylvania  in  1801,  the  action  was  for  money  due  lor  jilasli'iinij  iwo 
liDUses,  and  the  dispute  was  as  to  the  mode  of  meastirin'j;,  the  plaintiffs  ir.sistin.u; 
that  according  to  the  usage  of  plasterers  in  Pliiladelpliiii  they  were  entitled  to 
ilie  rat<!  per  square  yard  contracted  for,  not  only  for  tlie  surface  actually  plas- 
tered, but  for  one-half  of  the  size  of  the  windows.  But  the  court  said:  "The 
liretended  ustijje  of  the  plasterers  in  the  i)resent  iusttince  is  unniasouable,  and 
!)ad  in  itself.  To  charjie  an  employer  with  materials  nevtir  received,  is  the 
lieiuilit  of  injustice."  It  is  not  ea.sy,  however,  to  reconcile  this  case  with  sub- 
leipieut  ones  in  which  similar  questions  have  been  presented.  In  I'iUshnnj  v. 
O^N'cill,''  decided  by  the  same  court  forty-four  ytuirs  later,  it  was  ruled  that  the 
uuinber  of  bricks  laid  in  a  pavement,  untler  a  contract,  miiiht  be  computed  by 
allowitia;  a  given  number  to  the  square  yard,  according  to  the  usage  of  pavers. 
In  Ford  V.  TirrelP  (Massachusetts,  1657),  the  contract  was  to  build  the  wall  of 
,in  octangular  cellar  at  the  rate  of  eleven  cents  per  foot,  and  the  dispute  was  as 
to  the  mode  of  measurement,  —  the  defendant  contending  that,  the  inner  surface 
of  the  wall  should  be  the  rule;  the  plaintiff,  that  an  additional  aUowance  should 
he  made  for  the  necessary  work  at  the  angles  to  support  the  building, — and  it 
was  held  that  it  was  competent  to  prove  a  local  usage  of  measuring  cellar  walls, 
in  order  to  interpret  the  contract.  In  Lowe  v.  Lehman  *  (Ohio,  18(!f),  on  a  con- 
tract to  furnish  and  lay  up  brick  at  a  certain  i)rice  per  thoustmd,  the  contro\ersy 
was  as  to  the  proper  mode  of  counting  the  bricks,  and  evidence  of  a  usage  among 
builders  to  estimate  by  measurement  of  the  walls  on  a  uniform  rule  based  on 
the  average  size  of  brick,  making  slight  additions  for  extra  work  and  wastage, 
deducting  openings  in  walls,  but  not  for  openings  in  chimneys,  nor  gambs,  wa.- 
ruled  to  be  admissible.  In  answer  to  the  suggestion  that  the  custom  was  uuroa- 
soutible,  the  court  said:  "We  are  unable  to  see  anything  unreasonable  in  the 
custom.  The  workuiiin  was  vo  furnish  the  brick  and  materials,  and  lay  them  up 
by  the  thousand.  The  contract  contains  no  spccitlcations  of  the  dimensions, 
shape,  angles,  openings,  or  arches  of  the  wall,  or  of  the  size  of  the  brick.  It 
does  not  require  a  mason  to  know  that  the  value  of  the  work  and  materials 
depends  much  upon  these,  and  such  like  conditions,  if  they  are  to  be  paid  for  by 
the  numerical  thousand.  Again :  the  brick  are  to  be  furnished  as  well  as  laid  up. 
Where  and  how  will  you  count  them  numerically?  Will  you  count  them  at  the 
kiln,  on  the  ground,  or  in  the  wall?  And  who  will  lose  the  breakage  in  trans- 
portation and  in  handling,  and  the  waste  of  filling  them  iuio  tlie  wall.  Some 
fair  measurement  of  the  wall  would  seem  to  be  a  more  reasonable  method.  And 
we  cannot  say  that  this  method  was  not  a  fair  one.  It  slightly  increased  the 
estimated  number  of  bricks  in  the  wall,  it  is  true,  by  making  small  additions  for 
oxtra  work,  and  extra  waste  of  bricks  at  the  angles  and  openings;  and  the  rule 
•f  measiirem.;nt  adopted  fixes  upon  an  arbitrary  and  uniform  dimension  for  the 
average  size  of  the  brick,  which  may  vary  slightly,  but  cannot  vary  very  much 
from  their  true  average  size.  .Ml  this  siicins  to  be  reasonable."  The  foregoing 
ea-es  were  reviewed  and  the  <iuestiou  of  the  reasonableness  of  such  usages  was 
considered  in  a  lengthy  and  exhaustive  manner  by  the  Coi"       '  *'M)eals  of  New 


;!  Veulcs,  ;ii8. 
1  Pa.  »i.  ai3. 


■■>  9Ciniy,401. 
«  IS  Ohio  St.  179. 


f 


392 


TliKlli    AL).\ll.SSlBII.[rV    TO    KXIM.AIN    (JO.VTIJAUTS. 


Contracts  f(jr  Labor  and  Mati-rials. 


W'l   wh <    IMS    ^\ 


York   in    1872,  In  the  case  of   Walls  v.  Bailon.^    Tlic  plaintiffs  contraciid,  in 
writing,  to  furnish  the  materials  to  do  certain  plastering;  for  defendant,  at  so  nuich 
per  square  foot.    They  charged   liim  for  tlie  full  surface  of  tiic  wall,  without 
deducting  for  cornices,  Jjase-boarUs,  or  doors  and  windows.     On  tlie  trial,  [noof 
that  this  was  the  customary  method  among  plasterers  in  nieasurhiLi,  woi  k  was 
allowed.    Tlie  Court  of  Appeals  sustained  tlie  ruling  of  the  lower  court  in  iliis 
particular.     Said  Folckk,  J. :  "  The  contract  between  the  parties  was  in  writ- 
ing.   By  it  the  plaintiffs  were  to  furnish  the  material  foi-  tlie  piaster! ns-woik  of 
tlie  defendant's  house,  and  to  do  the  work  of  layiug  it  on.     Tlie  defendant  was 
to  pay  them  for  tlie  work  and  material  a  price  per  s(|uare  yard.     Of  course,  the 
total  of  the  compensation  was  to  be  got  at  by  measurement.     liut  when  the 
parties  came  to  determine  how  many  square  yards  there  were,  they  dilfdrcd. 
The  query  was,  the  square  yards  of  what?     Of  the  plaster  actually  laitl  on,  or  of 
the  whole  side  of  the  house,  calling  it  solid,  witli  no  allowance  for  the  opcniiv^s 
by  windows  and  doors?"     After  examining  tlie  prior  adjudication,  the  learned 
judge  continued:  "So,  in  the   case  before   us,  how  shall  the  iinnil)er  ot  \\w. 
square  yards  of  work  done  be  ascertained?  is  not  so  determinately  reaehed  by 
the  language  of  the  contract  as  that  tlie  law  can  say  there  was  but  oni'  nicthoil 
in  the  iniiuls  of  the  parties,  and  this  is  it."     Referring  next  to  the  case  of  ,li,riltui 
V.  Meredith,  the  judge  concluded  his  opinion  by  showing  that  such  a  usage  wa.s 
not  necessarily   unreasonable,  and   could   not,  therefore,  be  rejected   on  that 
ground:  "The  appellant  has  cited  us  to  Jordan  v.  Meredith,'-  in  wiiicli  it  is  >ai(| 
that  the  pretended  usage  of  plasterers  to  charge  for  a  part  of  the  o|)en'ni;s  is 
unreasonable  and  bad.    The  reason  there  given  why  it  is  so,  is  that  it  is  the 
height  of  injustice  to  charge  an  emploj-er  with  materials  never  funnshid.     iitit 
as  to  this  case,  it  is  to  be  remarked  that  this  expression  is  obiter.     For  it  did  mkI 
appear  that  the  jury  found  that  there  existed  tlie  usage  commented  upon;  ami 
the  decision  of  the  case  is  put  upon  tlie  ground  that  tliere  was  no  proof  that  the 
jury  had  been  governed  by  a  usage.     Again:  the  remark  is  conlined  to  a  coii.-id- 
ej'ation  of  the  material  furnished,  whereas  the  usage  claimed  in  the  case  before 
us  is  concerned  as  well  with  labor  performed.    Antl  the  usage  is  not  desiirntd  \\> 
obtain  payment  for  material  never  furnished.     It  is  a  method  devised  lor  uiium 
conveniently  and  readily  ascertaining  ihcqunntum  of   compensation  for  ww.w 
work  lias  been  done  in  fact,  and  what  material  has  been  in  fact  fnrnisjied.     li  j> 
agreeable  with  common  sense  that  it  is  more  dilHcult,  asking  more  skill  ami 
care,  requiring  more  time  to  plaster  about  the  frames  of  doors  and  windows  aii'' 
along  the  edges  of  base-lioards  and  cornices  tluui  over  the  plain,  uninlerrnptid 
surface  of  wall  and  ceiling.    Tiie  more,  then,  of  sucli  openings  or  obstacles, 
the  more,  in  proportion  to  tlie  space  of  plaster  actually  laid  on,  shotdd  be  tin 
compensation.    And  it  matters  .not,  in  law  or  in  reason,  how  the  anionnt  of 
that  greater  compensation  is  arrived  at;  Vvhether  by  a  minute  and  precise  e;drii- 
lation  of  part  plain  and  of  part  broken  space,  at  a  greater  price  for  the  sqiian 
yard  of  space  actually  covered,  or  by  an  assumiitioii  that  the   whole   surface 
worked  upon  is  plain,  and  then  payment,  be  made  for  it  at  a  less  price  per  s(|UMn 
yard  thereof.    The  aim  which  the  usage  takes  is  at  a  compensation  which  slial! 
be  just  to  employer  and  employed.     Tlie  mode  of  reaching  it  propo-icd  by  the 
usage  does  not  infringe  upon  any  principle  of  law,  for  it  is  but  a  mode.     U  is 


49  N.  Y.  464. 


2  3  Yeates,  318. 


CONTitAf  IS    I'OH    LAIJOK    AND    .>r.\  IKKIALS. 


39H 


Misciellaiioous  Usages. 


not  unreasonable ;  for  the  price  per  square  yanl  will,  in  tin  rivalry  or  competi- 
tion for  tlic  worI\,  be  made  to  agree  in  amount  witli  tlie  nietliocl  useil  of  asccr- 
taininii  tlio  nunibcr  of  yards,  and  tlie  difference  in  tlie  amount  of  materia! 
(iiiiiislied  will  l)e  but  a  make-weight  in  determining  tlie  eomi)ensation  for  tlie 
labor  performed." 

Where,  by  a  building-contract,  the  plaintiff  agn^ed  to  make  certain  alterations 
and  repairs  upon  tlic  defendant's  liouse,  for  which  the  hitter  agreed  to  pay 
twelve  shillings  "  per  day  "  for  each  man  employed,  it  was  held  competent  to 
show  a  usage  among  carpenters  that  ten  hours  eoiistiliited  a  "  day's  "  work,  :im(I 
entitliii'j;  them  to  charge  one  day  and  a  quarter  for  each  natural  day  diirin_' 
which  the  men  worked  twelve  liours  and  a  lialf.  "  Here,"  said  Bkonson,  .)., 
"the  i)laintiff  was  to  be  paid  for  his  workmen  at  the  rate  of  twelve  shilliim<  //<-/• 
dn;i,  but  tlie  parties  have  not  told  us  by  their  contract  what  th(!y  meant  by  a 
(lay's  work.  It  has  not  been  i)retendcd  that  it  ni'ct;ssarily  means  tlio  lalior  of 
twenty-four  hours.  How  much,  tlien,  does  it  meaui'  Kvidimce  of  tlie  usage?  or 
custom  was  let  in  to  answer  that  (piestion.  And  when  we  find  a  universal 
usage  in  this  business  to  call  ten  hours'  labor  a  day's  work,  we  liave  arrived  at 
the  true  meaning  of  tlie  word  'day'  as  used  in  this  contract."'  So,  wliere  A. 
and  R.  entered  into  a  contract  by  which  A.  was  to  cut  and  tit  the  stone  for  walls 
of  a  tunnel  at  a  specilied  price  per  font,  "  tlie  fa;:(!  of  the  work  that  shows  lo  Ix; 
measured,  and  none  else,"  ainl  A.,  claimed  tliat  "the  face  of  the  work  "  included 
all  the  cut  and  dressed  surface  exposed,  both  iiorizontal  and  perpeiulieidar, 
while  n.  insisted  on  an  oppositi:  meaning,  the  difference  was  settled  by  e\ideiice 
of  usage. ^  An  agreement  for  the  building  of  a  house  contained  a  proviso  tliat 
"no  alterations  or  additions  should  be  admitteil  unless  directed  by  the  architect 
of  the  defendant,  in  writing,  under  his  hand,  and  a  weekly  account  of  tlie  work 
done  thereunder  should  be  delivered  to  the  architect  on  every  Monday  next 
ensuing  the  perfoi'iuanee  of  sueli  work."  In  an  action  to  recover  a  balance  due 
the  plaintiff  on  this  contract,  parol  evidence  was  admitted  to  show  that  by 
the  usage  of  the  building  trade  "weekly  accounts"  meant  accounts  of  the 
(lay-ivork  expended  in  each  week  on  oxlditions  and  alterations,  and  that  sucli 
accounts  were  not  usually  given  in  the  case  of  extra  work  capable  of  being 
measured.^  Ami  where  the  plaintiffs'  contracted  in  writing  to  build  for  the 
defendant  the  front  and  back  walls  of  a  liouse  "for  the  sum  of  :\s  per  super- 
ficial yard  of  work,  nine  inclies  thick,  and  finding  all  materials,  (h'diictiiig  lor 
li,tlils,"  and  it  appeared  that  the  lower  part  of  the  walls  to  the  height  of  eleven 
feet  was  of  stone,  two  feet  thick,  the  remainder  of  brick,  fourteen  inches  thick, 
evidence  was  admitted  of  the  usage  of  l.iuiklei-s  at  the  place  to  reduce  bri(;k- 
work,  for  tlie  purpose  of  measurement,  lo  nine  inclies,  but  not  to  reduce  stone- 
work unless  exceeding  two  feet  in  tliickness.*  Where  a  contract  for  the  erection 
of  a  building  specilles  the  dimensions  of  tlie  walls,  lloors,  etc.,  but  says  nothing 
about  the  roof,  it  may  be  shown  by  evidence  of  tlic  ciislon^  f>f  the  trade  that 
such  a  contract  did  not  call  for  a  tin  roof,  or,  indeed,  any  roof.^  And  on  a  simi- 
lar principle,  and  for  the  same  reasons,  evidence  of  usage  lias  been  received  to 
pi'ove  the  meaning  of  "hard-pan"  in  a  contract,  to  make  excavations,'  and  to 


'  Ilorton  r.  T/ictio,  5  irin,4'i7. 

'  MMi-iin  I-.  Tlir.islKT,  10  Vt.  li!0. 

'  Mv.M-s  (•.  s;iil,  ;!0  L.  J.  (Q.  H.)  !1;  7  .Tur. 

(N.  s.)  ')7. 


*  Symoiids  V.  rJoy<l,  C,  C.  I{.  (v.  .s.)  C'jj. 
■'  fieynold-,  c.  Jourdati,  (i  Ciil.  108. 
'   l>i<'.l<s(iii  c.  WaUMtJouJinissioners,  2  llun, 
(>15:    Uiiliois    ?•.    Dolawai'c,   etc.,  R.  Co.,    12 


394 


THKIlt    ADMISSIUILITY    TO    EXPLAIN'    CONTKACTS. 


if 


ir 


Master  and  Servant  —  Contracts  of  Service. 

explain  the  terms  "business  card,"  "advertising  chart,"  and  the  won!  "  jxil)- 
lished,"  in  an  asirecment  to  pay  another  a  certain  sum  "for  inserting  business 
card  in  two  hundred  copies  of  \na  advertising  chart,  to  be  paid  when  tlie  clmrt 
is  publisiicd."  ' 

§108.  Master  and  Servant  —  Contracts  of  Service.  —  We  liave  sei  ii  'hut 
contracts  of  service  may  be  explained  by  usage; ''  and  this  is  so,  as  well,  where 
the  contract  lias  iieeu  reduced  to  writing.  Thus,  in  (^(/«e»  v.  Inhabitants  of  Siokc 
upon-Trent,'  workmen  were  hired  for  a  year  under  a  contract  whereby  tiiey 
engaged  "to  serve  B.  &  Co.  from  11th  November,  181(i,  to  11th  November, 
1817,  *  ♦  *  to  lose  no  time  on  our  own  account,  to  do  our  work  well,  and 
behave  ourselves  in  every  respect  as  good  servant^;."  It  ap|)earing  that  one  of 
them  had  occasionally  absented  himself  on  holidays  during  the  year  without  his 
master's  permission,  it  was  ruled  in  the  Court  of  Queen's  IJench,  reversing  the 
opinion  of  the  trial  court,  that  evidence  was  admissible  to  show  tliat  it  was  the 
custom  of  tluit  trade  for  tlie  workmen  to  take  certain  liolidays,  and  to  absciit 
tliemselves  on  such  occasions  witliout  their  master's  permission.  Again:  in 
Grant  v.  Maddox,*  the  plaintiff  was  an  actress  and  the  defendant  a  theatrical 
manager,  and  by  a  written  contract  she  agreed  to  perform  at  his  theatre,  and 
the  (U'fenihuit  aiireed  to  engage  lier  for  "  three  years,"  and  pay  her  a  silaiv  ol 
£5,  £(j,  and  £7  "per  week"  in  those  years,  respectively.  In  an  action  on  the  con- 
tract, the  plaintiff  contended  that  she  was  entitled  to  receive  the  salary  stipii- 
hited  for  every  week  of  the  whole  of  the  three  years,  t)ut  the  defendant  tendered 
evidence,  which  was  admitted,  to  show  that  according  to  t'  understanding  and 
custom  of  the  theatrical  profesiou,  under  an  engasiement  to  |)erform  for  one  or 
more  "  years,"  actors  were  never  paid  during  the  time  of  vacation,  but  only 
during  what  was  called  the  theatrical  season.  Wliere  tin-  defendant  covenanted 
to  teach  the  plaintiff  the  trade  of  "  a  cabinet  and  mahoirany  door  maker,"  evi- 
dence that  these  words,  as  used  in  the  trade,  included  only  the  making  of  doors 
of  mahogany  and  ornamental  woods  was  admitted.  '•  Where  terms  of  art  are 
used,"  said  Mrrcai-Li.,  J.,  "and  have  acquired  a  definite  meaning  known  to 
those  engaged  ir.  it,  but  not  plain  on  the  face  of  the  agrijement,  cvidcince  may  be 
received  as  to  what  tliat  meaning  is.  Thus,  no  one  not  familiar  with  the  trade 
could  tell  all  that  a  lad  should  l)e  taught  who  was  to  learn  the  trade  of  a  cai)inot- 
maker;  noi  would  one  know  from  the  words  alone  that  a  mahogany  door  maker 
was  one  wlu)  made  the  frame  of  the  door  from  pine  wood,  and  only  laid  eu 
veneers  of  mahogany." 

In  Parker  v.  Ihhetson,^  the  defendants  were  manufacturers  of  woollen  cloths, 
and  the  plaintiff  agreed  to  serve  them  as  agent,  under  a  written  agreement  as  fol- 
lows: "P.  engages  to  serve  the  said  I.  &  Co.  as  agent  or  representative,  at  the 
salary  of  £1.50  per  annum  in  consideration  thereof.  Also  provided,  that  at  the 
end  of  the  year,  if  I.  &  Co.  find  the  said  P.  has  (U)ne  sullicient  business  to  justify 
them  in  recomi)ensing  him  by  making  up  his  salary  to  £180,  to  do  so,  beluga 


Wend.  334  ;  «.  o.  15  Wend.  87;  Currier  r.  Bos- 
ton, etc.,  K.  Co.,  ;u  N.  II.  49S. 

'  stoops  r.  Sinitli,  JOO  Mass.  63.  Coinpiire 
Hotson  V.  IliDwiiu, '.I  O.  B.  (N.  S.)  Hi;  Zer- 
rahn  v.  Ditson,  117  Mass.  653. 


-  Ante,  pp.  l;{4-136. 
3  5  Q.  I'..  303. 
<  15  Mee.  &  W.  737. 
MC.  B.  (N.  s.)  ;U6. 


m 


MA.sTKU    A\U    8F-KVANT. 


395 


Kxpl.iiiiiiiii  rnntriicts  of  Scrvii-e. 


word  "  [)iil)- 
tiiiK  l)u><iii('SH 
heii  tlK'  chart 


ive  seen  tlmt 
IS  well,  wliore 
'.ants  iif  Slokc 
vvliort'by  tliey 
A\  N()\('inbi!r, 
'ork  \v((l),  and 
ij^  that  one  of 
V  witlioiit  his 
rovcrsin^  the 
lat  it  was  tlie 
md  to  absent 
II.  Af^ain:  in 
t  a  theatrical 
;  theatn^  ami 
ler  a  salary  ol 
jn  on  tilt'  con- 
salary  stipu- 
rtar.t  tendered 
•standini^  ami 
rni  for  one  or 
ion,  but  only 
It  covenanted 
maker,"  evl- 
kini?  of  doors 
ms  of  art  are 
nil  known  to 
[lence  may  be 
ritli  the  trade 
of  a  cabinet- 
y  door  maker 
onlj  laid  on 

jollcn  cloths, 
jcment  as  fol- 
itativc,  at  the 
id,  that  at  the 
less  to  justify 
o  so,  beiii^a 


donation  of  £;}0  to  his  presont  stipulated  amount  of  £150."  This  ai^rcemeut 
was  entered  into  on  the  ;'>Oth  of  January,  and  the  plaintiff  continued  in  the  .scr- 
viee  until  the  1st  of  .Vuijust,  receivinji  his  salary  monthly,  when  the  defcntlants 
'^ave  him  a  month's  notice  to  quit.  For  this  dismissal,  which  the  plaintiff  con- 
tended was  wrongful  and  in  contravention  of  the  agreiuicnt,  he  brouf^ht  an 
action.  On  the  trial,  the  defendants  called  .several  witnesses  to  prove  a  custom  in 
the  trade  to  dismiss  at  a  month's  notice  though  the  eni^aijeinent  was  at  a  yearly 
salary,  and  it  was  proved  that  one  house  of  i)roniinence  in  the  trade  a(h)pted  a 
fiirni  of  hiring  to  exclude  the  custom  for  a  month's  notice,  where  the  agreement 
stipulated  for  a  bonus  for  jj;ood  conduct  at  tlie  end  of  the  year.  The  judne  ;Ci:ks- 
WKM.)  instructed  the  jury  that  if  tliey  found  tliat  the  custom  existed,  and  that  the 
eoiiiract  was  made;  with  reference  to  it,  they  should  find  for  the  defendants ;  (Other- 
wise, for  the  plaintiff.'     The  jury  found  that  the  custom  was  proved,  but  tliat 


'  Creswell,  .f.,  in  siiinniing  iiii,  said  to  the 
jury:  "The  plainliff  in  tliis  ease  complains 
(hill  he  lias  been  disniis.sed  by  the  defundant 
on  a  nionlh's  notice,  iiolwillistanding  he  was 
cngiiged  under  a  contract  for  a  year.  The 
defendant,  on  the  oilier  hand,  says:  'It  is 
line, I  entered  into  a  contract  with  you  for  a 
yi'ar;  but  by  the  custom  and  usage  of  the 
lilaec  where  the  contract  was  made  and  was 
I'l  be  fulfilled,  —  viz.,  London,  —  a  clerk  or 
-orvant,  tliougli  hired  under  such  cireum- 
-lances,  is  liable  to  be  discharged,  and 
<iuilled  to  put  an  end  to  the  service  at  a 
iiiDiitli's  notice.'  No  doubt,  with  reference 
til  domestic  servants  the  custom  is  univer- 
sally so.  A  servant  is  hired  at  yearly  w:i},'e:i ; 
tlic  hiring  is  yearly,  but  is  liable  tobeler- 
minaied  by  either  party  on  a  month's  notice. 
Ii  does  not,  however,  follow  from  that  that 
the  same  slate  of  things  e.xists  with  regard 
to  clerks  and  persons  in  the  position  of  the 
present  plaintitf.  The  circumstance  of  the 
cdiitraet  being  in  writing  makes  no  differ- 
ence; it  is  not  any  stronger  or  more  binding 
by  being  written,  though  it  renders  the  proof 
of  its  terms  more  easy,  and  less  liable  to  mis- 
representation or  mistake.  If  that  which 
is  here  put  npon  paper  had  simply  been 
expressed  byword  of  n^""-:-,  its  legal  opera 
(ion  and  eflect  would  have  been  precisely 
llii'same.  In  order  to  justify  liis  dismissal 
of  the  plainliir  witliiu  the  year,  the  defend- 
.1111,  by  Ills  llflh  plea,  sets  up  the  custo.'i  of  a 
month's  notice;  and  if  he  proves  tha*^  to 
your  satisfa(!tion,  whether  the  contract  be  in 
wriiiiig  or  not  makes  no  difference.  Now, 
tlie  defendant  has  called  before  you  several 
witnes.ses  to  prove  the  custom  as  alleged. 
Il  was  not  necessary,  perhaps  hardly  possi- 
ble, to  adduce  an  instance  exactly  in  point 
of  a  person  in  the  precise  position  of  the 
present  plaintiff;  but  you  must  judge  from 


the  general  understanding  of  the  trade  in 
analogous  cases  whether  the  parties  meant 
to  contract  upon  the  footing  of  that  custom. 
Where  there  is  a  general  custoin  prevailing 
with  reference  to  a  particular  trade  in  the 
place  where  a  contract  is  made,  and  nothing 
is  said  to  exclude  it,  the  contract  must  be 
assumed  to  have  been  made  subject  to  the 
importation  of  the  custom  into  it.  For 
instance,  in  a  particular  trade,  a  contract 
for  the  sale  of  goods,  nothing  being  said  to 
tlie  contrary,  is  understood  to  be  at  a  credit 
of  a  fortnight  or  a  month.  In  that  ease  the 
parties  are  supposed  to  contract  with  refer- 
ence to  the  custom,  and  are  bound  by  it. 
One  of  the  defendant's  witnesses  states  that 
it  is  the  custom  of  the  trade  generally  to  jiut 
an  end  to  the  service  at  a  month's  notice, 
whai'c  the  hiring  is  yearly  and  cat  a  yearly 
salary.  Generally  speaking,  a  yearly  salary 
imports  a  yearly  hiring,  as  in  the  case  of  a 
butler  or  a  coachman;  and  in  the  eases 
under  the  old  settlement  law,  a  general 
hiring  at  a  yearly  salary  w:is  always  hehl  to 
be  a  hiring  for  a  year.  The  principal  wit- 
ness on  the  part  of  the  defendant,  however, 
on  cross-examination,  stated  that  he  did  not 
rememlier  an  instance  of  a  clerk  or  agent  in 
this  particular  trade  having  been  dismissed 
at  a  month's  notice  where  the  contract  con- 
tained such  a  provision  as  in  this  case— for  a 
IjKiius  for  good  conduct  at  the  end  <if  the 
year.  That,  as  it  seems  to  me,  may  liave 
some  influence  in  determining  your  judg- 
ment ution  this  question.  The  parties  (Irst 
agree  for  a  general  hiring  at  a  yearly  salary; 
llien  they  add  a  proviso  that  if  the  employer 
shall,  at  the  end  of  the  year,  consider  the 
agent  deserving  of  it,  ho  shall  be  rewarded 
V.  itli  .1  donation  of  £;!0.  Now,  the  only  legit- 
imale  effect  of  that  — assuming  the  custom 
to  have  been  established  —  would  seem  to 


i 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


l^|2J     12.5 

|50     *^~        ■■■ 

I 


m 


L25  ||U   |,.6 

^ 

6"     

► 

V] 


0%. 


:>  ■> 


^'S 


^r 


'/ 


/A 


Photographic 

Sciences 

Corporation 


23  WIST  MAIN  STRHT 

WIBSTIR.N.Y.  MSSO 

(7l6)t7a-4S03 


^>" 


<P 


J. 


V 


* 


396 


THKIK    AOMISSIIMI.ITY    TO    KXIM.AIN    COX  riJACTvS. 


E<> 


Muster  aiid  StTvant  —  Contracts  of  Service. 


^'1 
1% 


III 

i  1 1  ry 


1 


the  liiriiii;  was  a  special  liirins,  to  which  the  custom  did  not  apply,  and  ntii'-nid 
a  verdict  of  £70  for  tlio  plaintiff.     On  appeal,  all  tlie  jiid^es  iirld  that  liic  con- 
struction of  tlu!  contract  slionld   not  have   heen  left  to  the  jury,      (^kowi  i':, 
J.,  said:  •«  I  am  of  opinion  tliat  this  rule  must  he  made  absolute.     Tlie  qui-idn 
arises  in  an  action  brought  upon  an  agreement  entered  into  betw(;en  a  d.  ik  cr 
servant  and  his  employer  in  a  certain  trade,  which  agreement  is  in  \\riiiii_'; 
and  the  contention  at  the  trial  was  as  to  the  existence  of  tli«!  custom  state 
the  fifth  plea,  and  its  application  to  the  contract  before  the  coiirl.     Tln' 
were  asked  certain  questions,  and  invited  to  draw  certain  conclii'iloiis. 
were,  whether  the  custom  ws  proved,  and  whether,  if  provtid,  it  was  npp'ii-iliic- 
to  the  siM'cial  terms  of  this  contract.     On  the  part  of  the  defendant  it  is  ((in- 
tended that  this  latter  was  not  a  (luestion  for  the  j'lry,  '>i't  ^"r  "'t!  court ;  Mn>l  I 
am  of  that  opinion.     Looking;  at  the  evidence,  it  seems  to  havi;  l)e«Mi  esi;il):i-li  ,| 
-h      there  was  a  f?':"*^'"'!'  custom  in  the  trade  that  a  yearly  hiring;  mitrlii  br  pm 
an  en(!  to  by  either  party  npon  a  month's  notic<!.     It  is  insisted  on  the  part  ni 
the  •..linliff  that,  assunting  such  a  custom  to  exist,  tlie  special  Kmiiis  of  liii- 
atx       ./    nt  exclude  the  ai)plication  of  it  to  this  case.     It  seems  to  me  iliat  th.n 
Is  li     •t\.ndation  for  that  ariiument.     The  llrst  ()art  of  the  contract  aiii(.:!iit> 
sii.  i;iy  to  an  en>ia,ij;oment  on  the  part  of  the  plaintiff  to  .serve  the  (iefcnjani  .iv 
afie:it,  at  the  salary  of  £150  per  annum;  then  follows  a  proviso  dial  if 'at  ;li.' 
end  of  the  year  the  said  Henry  Ibbetson  &  Co.  (the  deleiKl.iiitsI  tind  ilic  ^.[\t\ 
R.  .\.  Parker  (the  plaintiff)  has  done  sudlcii'nt  business  to  justify  tlum  in  ni  toii- 
pensinii;  by  making  up  his  salary  to  £180,  to  ilo  so,  being  a  doiialiou  ol  i;;ii 'o 
his  present  stipulated  amount  of  £150.'     Keadin.n  this  airreemeiit,    -and  its  rnn- 
structioii  is  for  the  court,  and  not  for  the  jury,  —  it  seems  to  inc  to  be  simply  an 
agreement  for  a  yearly  hiring  at  a  yearly  salary,  and  that  there  is  nothing  in  ilir 
proviso  to  alter  the  nature  and  character  of  the  agret'iiKut.     It  is  a  mere  staii  - 
ment  that  the  defifudant  will  at  the  end  »)f  the  year,  if  he  shall  see  (It,  make  the 
plaintiff  a  present  of  £;50.    It  is  clear  that  this  £;iO  could  not  have  been  recovered 
by  action  if  the  service  had  lasted  until  the  end  of  the  year.    The  siiiip/lc  (|ii(-.;inii 
is  vvh(!th('r,  looking  at  the  custom  i)roved,  which  is  general,  there  is  aiiytliiii^;  in 
tlu'  written  agreement  to  exclude  it.      I  see  nothing  in  it  that  can  have  thai 
effect.    The  proviso   cannot  exclude   it;   that  has   no  reference   to   disniis-al. 
Then,  if  there  is  nothing  in  the  contract  that  is  inconsistent  with  tli((  aiipliraMi  n 
of  the  general  custom,  it  is  the  .same  as  if  the  custom  had  formed  pailot  i.i' 
wrilten  agreement.     This  case  must  follow  the  ordinary  rule:  that  whi  ivNcr  i 
contract  is  madi;  in  a  particular  trade,  all  customs  which  regulate  that  trade  an 
tacitly  incorporated  into  tlu;  contract  unless  by  express  terms  excluded.    Tlnri 


li(>  thai  liy  introcliuMnj;  tlial  stiinilation  into 
till'  conlnKit  tliey  iiiiNiiit  lln?  riivi(Hn  to  Iju 
excluded.  Tlic  llrsl  (lue^lion,  llicii.  for  your 
eou.'.ldiirat'ou  will  lii;  wliollior  sucli  a  c.usiom 
as  allei^ud  cxii't.s  in  the  pailiciilar  trade;  and 
die  second  <|nw>tioii  will  Ix;  whctlun'  the 
uoiilraut  was  inadu  with  rofcrcnce  to  llu! 
custom,  or  w;is  a  KpL'c.ial  contract  to  whicli 
the  custom  ijiil  not  apply.  If  yon  tliink  the 
evidence  usinhlishus  the  cii.-l.oin,  it  incroly 
roinains  for  ycni  to  coiisiilcr  whclher  you 
Infor  from  the  latter  part  of  the  aiirocment 


that  the  parties  meant  to  exclude  tlie  anpli 
caliini  of  llio  eaistoin  in  till!  parliciilai- ca-c. 
If  yiiii  think  llicy  did  not  conl.'acl  willi  lli  n 
intuntion,  llio  defendant  wiil  bu  (ailiilc<l  lo 
your  verdict.  If,  on  the  other  hand,  ymi 
lliinli  ihe  raist'im  is  not  cstalilixhed,  llicn  ihc 
(liMiiissal  of  thu  plainlitl'  lieforu  the  cviuia- 
tioii  of  ilieycnrls  not  ju>lilli<il,  and  lie  wilt 
lie  ontitltMl  loyinir  verdict,  with  fiicIi  dam 
ages  as  ynn  may  liiiuU  hiin  fairly  ocililcit  io 
for  such  wronsfid  rtclcriniiiation  of  llio  cmi- 
frnct." 


I.' 


-^ 


MAsri'.K    AND    SERVANT. 


;i!)/ 


ICx|)l;iiiiiiii^  Duties  of  Kinployincnt. 


was  nothm<!  to  warrant  tlu;  lomliision  of  the  jury,  and  con-scciiiciitly  ilio  rule 
will  be  made  al)-()Iutc;  not,  liowever,  to  enter  a  verdict  for  tlie  del'endant,  no 
leave  havinu;  been  reserved,  but  tor  a  new  trial."  Wii.i.ks,  J. :  "I  am  of  the 
same  opinion.  Tlie  fact  of  llie  plaintiff  liavinu;  been  emiaj^ed  at  a  yearly  salary, 
under  an  aiireomeiit  wliieli  lias  been  reduced  into  writing;,  is  clearly  not  enoimii 
to  exclude  tlu?  custom,  whicli  was  proved  to  ht;  ij;eneral,  to  determiiK!  a>iarly 
iiirins  by  irivinii  a  month's  notice,  just  as  in  the  ease  of  domestic  servants, 
where,  thouuli  a  lieiui,.!  hirini;  U  presumed  to  be  a  hirinjj;  for  a  year,  the  service 
may  nevertheless  be  put  an  en  ,  to  at  any  time  by  a  month's  notice.  The  (pies- 
lion  is,  whether  the  application  of  that  jieneial  cnstom  to  the  particular  case  is 
excluded  l)y  the  conelndinii  words  of  the  ainreeincnt,  which  providi;  that  at  the 
end  of  the  year,  if  the  employcir  is  satisfied  with  the  amount  of  business  done, 
he  will  make  an  addition  of  £:U)  to  the  stipulated  salary.  Would  that  pro- 
viso be  inconsistent  with  the  aurecnnent  vroinii  on  to  say  thai  the  master  should 
be  still  at  liberty,  if  so  minded,  to  dismiss  tlie  servant  at  any  time  diiriii'.i  the 
year,  npoti  jiivinu'  him  a  month's  notice?  riearly  not.  The  custom,  biinjr 
proved,  l)ecoiiies  part  and  parci-l  of  tlie  contract.  The  jury  had  no  riijlit  to  take 
upon  thcmselvi's  to  say  that  the  speei;il  contract  excluded  the  custom.  The  evi- 
dence upon  which  that  conclusion  was  fcjiindcd  do'—  not,  in  fact,  nciiative  tlic 
application  of  the  i-nstom  to  a  hiriutt  nniler  a  conliaet  like  this.  Tlu;  witnc-^s 
merely  stated  that  lu;  did  not  know  of  any  instance  w  lu-re,  umhir  such  an  annc- 
itient  as  the  present,  the  custom  had  been  acted  upon."  Hvi.tis,  ,r. :  "In  cases 
of  this  nature  two  questions  nonerally  arise  —  tlu?  one,  a  question  ol  law  :  w  lutlu  r 
the  terms  of  the  aj^rcemeiit  may  admit,  or  must  lU'cessarily  exclude  the  cii^lom; 
the  other,  one  of  fact:  whether,  if  the  aiircement  may  admit  the  custom,  the 
custom  extends  to  the  particular  aatreenicnl.  I  do  not,  therefore,  see  that  the 
learned  jndi;e  was  wroirj;  in  leaving;  tliis  latter  t|uestiiin  to  the  jury.  'I'lie  <'vi- 
dence  of  the  custom  was  irresistibly  slroii;:;  and  allhniiuli  the  jury  miirht,  upon 
proper  evidence,  lia\e  ioiiiid  a  limited  ciistoin,  then:  was  no  evidence  of  any 
such  limitaliou  liere." 


)}  Ifl'.t.  Sarao  To  explain  ttie  Duties  of  an  Employment  under  a  written 
Contract.  —  Thus,  a  party  aureeiiifj;  to  render  scr\  ice  as  "salesman,"  or  in  any 
othiT  capacity,  should  be  able  to  show  by  the  u>a'j;es  of  this  Iradi;  what  ser- 
vicers he  was  to  rtnider,  \vhi;rir  his  work  was  to  be  done,  what  <;oods  he  was  to 
sell,  and  how  many  hours  a  day  he  was  to  l)e  ei!ii)loyed.'  Thus,  euiiaircd  as  a 
"  lace  buyer,"  he  mijiht  show  that  an  order  from  his  employer  to  fold  some  lace  on 
cards  was  not  witliin  his  contract,  and  that  his  refusal  to  do  so  would  not  justify 
his  di-^niissal; -'  or,  eiiii"a'j:cd  as  a  travellinu'  salesman,  and  ii'jreeiii'.:  not  to  int 
over  •'  the  same  •ground  "  for  any  other  house,  ihrse  words  ou-Jiht  to  be  properly 
explained  by  parol  exidi-ncc  of  usa:i;e;  '  and  usa^c  may  explain  what  is  included 
in  "  sliii)-cari)cnters'  work,"  as  these  words  are  used  in  a  contract.'  Win  re  a 
dancinii-uirl  was  eirzaiied  in  France  as  a  ilitnsriisi-  for  a  New  Orleans  thealre, 
it  was  held  tliat,  she  miijht  justify  her  refusal   to  dauce  a  parlor  dance,  in   full 


'  Hawaii  r.  D'Uni'-^lii".  .'■ewin^j  M.icliiiio  (  ^)., 
!>  Hun,  7:!.  Ami  x'c  swi'cl,  r.  Ia!i(,  ;t  Man.  & 
U.  4.V2;  I'liiM!  r.  Mount,  II  (!.  It.  (n.  ».)  .'iO'.t; 
llo.s'ey  c.  lUac.li.'^s  N.  V.  r.]s. 


-  Vni-v  V.  Mount,  II  ("   n.  (N.  s.)  .W.t. 

'  Miiiuf.n-.l  r.  (ii-lhiiiK,  7  C.  »    (N.  8.J  305. 

'  Collyer  i>.  Colliii.s,  17  Al>b.  I'r.  467. 


i_M 


1 


308 


rilKlli    ADMISSIIULITY    TO    BXPLAIN    CONTKACT8. 


Us.'iKo  to  P^xpliiin  Wills. 


: 


dress,  in  the  comedy  of  "The  Serious  Family,"  hy  showinj?  thai  .sucli  wa^  uoi, 
by  custom,  re(|niret!  of  demur iines.^ 

§200.  Usage  admissible  In  Explanation  of  Wills. — Eviilence  of  ns.iy:c'  1- 
not  infreqiieiitly  of  v;ilii<"  in  urriviiii!;  at  t.iie  iiiteiiL  of  a  testator,  or  ilie  pinpi!' 
construction  of  acharitahle  «fift.  In  the  i^reat  case  of  Shore  v.  Wiisnii,-  l)y  clr,  ,1- 
executed  in  tlie  year  1704,  Lady  Ilewley  conveyed  a  nmiiher  of  e>itat(!s  of  un  it 
value  to  trustees,  upon  trust,  to  pay  out  of  the  rents  e(;rtain  smiis  yi;iiiy,  or 
otherwise,  to  "such  poor  and  godly  preachers  for  the  time  hc'iiuc  of  ('hri>.i'< 
Holy  Oospel,  and  to  sneh  poor  and  ;j;o(Ilv  widows  for  the  time  boiiiL;  of  pmn  .ml 
godly  preaiihcrs  of  Christ's  Holy  Gospel,"  as  the  tru^lces  for  the  tiinc  iichi- 
should  see  lit.  There  were  alsoolher  trusts  of  varion-^  Kiu<ls.  Diiliculiv  lui-ii,- 
In  the  interpretation  of  the  will,  it  was  at  last  decided  in  the  House  of  LdkI-,  in 
184'J.  that  extrinsic  evidt^nce  was  admissible  to  show  tliat  at  the  <latc  of  tii 
grant  there  was  a  sect  wlicli  was  in  the  habit  of  callinu  lhcmselve>  iiy  tlmi 
name.  In  Cotm(!etif\i!.,  in  1S45,  a  testator  devised  a  portion  nf  her  e>t:ili'  i.i  tli. 
"Foreign  Mission  Sixriety."  Tli'Te  was  no  society  of  ili.it  name,  bin,  iip-i! 
proof  that  it  was  (Mistoinary  for  the  testator,  and  many  otlu-rs,  to  ^^peak  of  "Tin 
American  Board  of  Commissioners  for  Foreign  Missions'"  by  tlic  nanii  u~i  il  li\ 
him  in  the  will,  the  existing  soeit^ty  was  allowed  to  take  it.'  And  in  a  uioir 
recent  case  in  X'W  York,  where  a  will  contained  a  bei|ut;st  to  "The  llonu  ol 
the  Frienflless  in  New  York,"  but  there  was  no  institution  of  thiit  name,  "  Tlic 
AiiK'rican  Female  (Jnaidian  Society"  was  decided  to  be  the  beneliciary  intini'  d, 
and  (iutitled  to  the  charity,  it  bt;ing  shown  that  by  the  formei"  numi-  it  wa~ace;i-- 
tomed  to  be  called  by  its  ollicers,  by  its  friends,  and  bv  tin;  testator.' 

So,  where  a  testator  is  in  the;  habit  of  using  a  particular  teiih  in  a  paiiicnlai 
sense,  this  fact  should  be  considered.  As  said  by  Lord  Ai'.i\(.i.i;,  in  //<  •"(7>n  \. 
IJiscorks:^  "  The  testator  may  have  habitually  calli;d  <;i'itMin  persons  or  thin.;.-^ 
by  peculiar  names,  by  which  they  were  not  commonly  known.  If  tii.sc  nam  - 
should  oc<!iir  in  his  will,  they  could  only  be  explained  and  constrmd  by  tlie  ;ii'l 
of  evidence  to  show  the  sense  in  which  he  used  them,  in  like  manner  as  if  iii'^ 
will  were  written  in  cipher,  or  ina  foreign  language.  The  habits  of  tin  t<-itioi, 
in  these  particidars,  must  be  receivable  as  evidence  to  explain  the  incniinLi  of 
the  will."  In  /i««umon(  v. /«'«/;,«  a  devise  to  "Catherine  Earnley  "  was  luld  to 
pass  to  "  Gertrude  Yardley,"  there  being  no  such  person  as  "  Catherine  Karnley  " 
known  to  the  testator,  and,  according  to  Lord  Auin'ii'.u  in  //t.sroc/'.s'  v  Ili^'inkx, 
becau.se  the  testator  was  accu.stomed  to  address  Gertruch'  Yardley  as  "  (iat;y."  ■ 
In  a  Connecticut  case  it  was  ruled  that  evidence  that  the  testator,  in  sp>  ikinu  of 
the  affairs  of  a  society  (a  religious  corporation),  in  contrudistinclion  to  ilie 
church  in  connection  with  \vliieh  it  was  organizi;d,  always  (-ailed  it  "tiic 
church,"  was  adnnssible  for  the  purpose  of  ast.-ertaining  which  body  should  take 


'  Haron  v.  Placitle,  7  l.a.  An.  -ti'.y 
-it  CI.    A    Fill.    ;!.'m.     Anil  sec;    Altornui- 
Cicneral  v.  Uruninionil,  1  Dr.  A.  War.  :M>A;  2 
II.  L.  <;as.  KM. 

•■'  American  Hiblt  Society  r.  Wutinore,  17 
Conn.  IS(>;  Howard  r.  .Vnierican  I'once 
Society,  4!)  Mu.  '2'M;  liiitlon  r.  Amoricao 
Tract  Society,  23  Vt.  HO,  Uoo  v.  AIIod,  U 
Ad.  A  B.  451. 


<  Lofevre  r.  T.efevie,  i  N.  V.  S.  <;.  tT-  * 

c.)  ;»;ii  ;.i.  <•.  .VI  N.  V.  4;m. 

■  ri  Mee.  A  W.  ;«i3. 

'i  2  p.  WiUH.  i:!8;  Scanlaii  r.  \Vr\it\\t.  i:i 
Pick.  5'2.{. 

'  And  see  Thomas  v.  Tlioinan,  U  Tfim 
Kep.  006. 


I 


UlSAt  r.    TO    KXri.AiN    WILLS. 


;5:»!> 


IllustriitionR. 


a  bequest  to  "the  ihuroh."  '  Thi!  rule  upon  which  thcs<-  citscs  are  founded, 
and  its  reasons,  are  well  >ial('d  by  Surrogate  Bkai>k<i|!I>  in  ilttrt  v.  Marks.- 
An  annuity  was  ;iivon  to  "  Paris  Piccanl,"  who  was  dL'scribcd  in  tike  will  as 
"  my  cousin."'  The  deceased  liad  no  cousin  named  "  Paris  Piccard,"  bui 
proof  was  offered  that  his  cousin  "  I'riscilla  Piccard"  was  usually  named  by 
him  as  described  in  the  will.  Said  the  court:  "I  think  this  evidence  compe- 
tent. Parol  proof  may  always  be  used  to  apply  the  will ;  that  is,  to  ascertain 
iii(!  person  intended  by  the  testator,  by  a  description  which,  thona;h  not  ambigu- 
ous on  its  face,  eanuot  be  ajiplied  precisely  as  expressed  in  tiie  instrument. 
Strictly  speakinir,  thi'  testator  had  no  cousin  named  Paris;  and  tlien  tiie  legacy 
iimst  fall,  uidess  we  seek  by  extrinsic  evidence  to  ascertain  whom  he  intended 
i)y  the  description.  \V<'  eaunot,  indeed,  alter  the  plain  terms  ol  a  written  instru- 
ment by  showinj;  the  testator's  declarations  in  contradiction  of  the  will,  or  in 
addition  to  it.  The  writ  itur  must  prevail,  and  must  l)e  interpn'cd  ))y  its  own 
laiiiruajie.  But  it  i«  entinly  coinix'tent  to  point  out  by  proof  the  [jerson  wh(j 
answers  th<!  descrir>tion  of  a  legatee,  as  contained  in  the  will.  Tlnre  can  be  no 
doubt  on  that  point.  But  if  there  be  no  person  who  exactly  aii>-wers  that 
(lescri|)tion,  then  wv  are  conipellcd  to  iiupiire,  by  means  of  e\lrin-;ie  evidence, 
whom  the  testator  intended.  The  court  at  all  times  may  demand  to  l)e  put  in 
tiie  place  of  the  testator,  in  order  to  understand  his  will,  its  references, 
alhisions,  and  descriiitions.  It  is  only  by  knowinir  tlu;  history  of  the  parties,  and 
lookins?  at  the  siirroiindinij:  facts,  that,  we  can  at  times  clearly  see  what  the  tes- 
tator desiiiued.  If,  in  deseribini!;  any  person  in  his  will,  he  has  used  a  name 
which  he  wa'j  accustomed  to  a|)ply  to  that  party,  on  proof  of  that  fact  the  de- 
seriptio"  contained  in  the  will  may  be  applied  with  entire  certainty.  If  the  will 
i)e  wriiuon  in  a  foreis^n  lanmiav;e,  it  can  be  translated;  if  it  contain  terms  wiiieh 
thf  writer  ordinarily  used  in  a  peculiar  sense,  that  can  be  shown;  and  if 
doeriptions  are  made  by  names  which  he  was  in  the  habit  of  apply in:r  to  the 
parties,  his  meaning  oan  be  irathered  just  as  well  from  the  use  of  those  names  a^ 
if  he  had  employed  the  appelliitions  by  which  they  were  commonly  known. 
I  have  no  doubt  that  this  is  a  leiiitimate  mode  of  interpretinir  a  will,  by  the  aid 
of  extrin'iic  evidence  in  exposition  of  the  habits  and  i)lira';colo;:y  of  the  tes- 
tator." So,  wluu'e  the  testator  has  been  accustomed  to  desiL'iiate  a  person  by 
his  surname  alone,  ■  or  his  baptismal  name  alone,'  or  a  pet  name  or  nickname,' 
or  even  a  wronj;  name,"  these  names,  when  appeariufj;  in  his  will,  may  be 
e\|)|ained  by  proof  of  his  usage.'' 

"  For  lik(r  reasons,"  as  stated  by  Mr.  Ri:i)i"ii;f.i>,«  "the  same  rule  would  api)ly 
to  any  unusual  mode  of  desiiinatinj?  his  pro|)erty,  either  his  real  or  personal 
estate;  as,  if  he  shoiihl  fiive  Jenny,  or  Fannie,  or  Old  Jim  to  certain  [X'rsoiis,  u 
wotild  be  proi)er  to  show  that  the  testator  called   certain  animals  by  those 


'  AyrpH  T.  \ViiVt\.  U\  Conn.  '290. 

2  4  Uradf.  Ui!. 

■<  Cljiyton  V.  NnKi'Mt,  l:i  .Mee.  &  W.  200. 

*  Wiigr.  on  Wills,  l:«t. 

5  1  lle(>f.  on  Wills,  t!;{i);  Andrews  e.  Tliora- 
88,  1  Cox,  'W.'i. 

'^  Lcie  V.  I'aln,  4  Hare,  'Jfil. 

'  "Tln're  i.s  nothing  lieller  pettled  tli;.n 
that  where  it  appoiirs  that  the  te-itatur  wa- 


accustomcd  to  call  certain  memliers  of  his 
family,  or  othnrs,  liy  any  smibrii/iirt,  .'•uc'h  a> 
pet  names  or  nii'knatni''',  and  snch  name^' 
occur  in  the  will,  parol  (!vi<l<!nce  is  receiv- 
able to  show  what  persons  he  was  accus- 
tonicil  lodc.-ignate  iu  this  luunnor."  1  Bedf. 
on  Will.s,  0.10. 

'  /(/.  cat. 


I 


i 


i; 


(' 


W'. 


. 


!!| 


> 


400 


TlIKIll    ADMISSIIUMTY    TO    KXI'LAIX    <;o\rUACTS. 


Usage  to  Kxplaiu  Wills. 


riiitiK's."  Tlioroforn,  in  the  loiidiii'j  caso  of  Jii/i'rs.'i  v.  W/ii'f/rr,^  the  testator  luiv- 
iiiii  i:iv«'n  his  "  baclv  lands"  to  devisees,  it  was  held  proper  lo  iri(|iiirc  what 
portion  of  his  property  he  was  ucciKslomcd  to  Uesi<jnate  by  this  name.  Karlii  r 
ill /t//.stee  V.  iVc/m.s',  tlie  testator  owned  a  farm  in  the  parish  of  Doynton.  One 
j)iece  of  tl>o  land,  hein^  part  of  the  farm,  and  surrounded  by  land  in  Doynidii, 
was  yet  in  faet  in  another  parish.  lie  devised  all  lii>  lands  in  Doynton  lo  liis 
<l;niiiliter,  and  tlie  jury  haviin;  found  tliat  he  luid  always  bei'n  accustoiiicil  to 
speak  of  the  whole  farm  bein-r  in  Doynton,  it  wa>  held  that  the  entire  estate 
went,  under  the  will,  to  the  dauy;hter.  In  Gohlrt  v.  /.VrcAv,^  Joseph  Nollekens, 
an  (Mninent  senlptor,  on  the  twciiy-eiui'th  day  of  .laniiary,  1^22,  executed  tlic  fui- 
lowinjj;  codicil  to  ids  will:  "Memorandum:  That  in  case  of  my  death,  all  ih- 
marlile  in  the  yard,  the  tools  in  the  shop,  Ixnikcrs,  mod.,  tools  for  carvinj;,  iii> 
rasp  in  the  draw  with  —and  the  draw  in  the  parlor,  shall  be  the  property  ^,\  ,\. 
(lol)let."  Tin-  coiM't  referred  the  maltcir  to  a  master  to  asirertain  the  nii  Miiiii:^  of 
the  words  "bankers"  and  "  mod."  The  master,  aetinu;  on  tin;  opinion  ot  lUree 
sculptors  and  statuaries,  reporled  thai,  as  n-ed  :iin(>inr  sculptors,  t!ie  word 
"banker"  meant  a  solid  piece  of  wood  upon  which  blocks  of  marble  wiTc 
placed  for  the  i)ur|)ose  of  bcinu;  carved  and  licit  "mod."  meant  iiiodeU,  M.nd 
not  modellinji-tools,  as  claimed  by  the  ■  reiid.niK.  \'ice-(:haiicellor  Sii adw  i,i,i., 
on  the  hearin.ir,  said  that  if,  in  the  juduiuenl  of  tlii'(  c  einin<  iit  scudptors,  "  mod." 
meant  modcds,  he  would  not  consider  himself  warranted  in  pultinj;  a  differenl 
interpretation  upon  the  word,  and  nave  a  decree  in  favor  of  the  plaintiff.  IJul 
an  appeal  '  beiim  taken,  Lord  IJitotiiUvM,  who  was  then  chancellor,  reversed 
the  decree  upon  i'liother  iiround,  and  in  a  jndvtmeni  wliicli  has  l)een  \  ij,<>rousl\ 
aiiacked  by  Sir.I\MKs  Wicw.vM.'  in  h'l'/l  v.  (JlmniK  r,''  the  iestalor's  will  was  in 
these  words:  "I  'ji'wv  and  lieciueath  to  my  son  William  the  sum  of  i.  y.  x.;  to 
my  son  Kobert  Charles  the  sum  of  u.  .c.  u;."  It  was  shown  that  tlu;  te<laior  in 
his  lifetime  had  curried  on  tlu?  business  of  a  jeweller,  and  in  the  course  of  his 
business  used  ceriain  private  marks  or  symbols  to  denote  prices  or  sums  of 
money,  ami  accordin?;  to  such  syst(Mii  the  letters  i.  .c.  .c.  and  o.  x.  x.  repre- 
sented the  sums  of  £100  and  tl^OO,  respectividy :  and  ilureupou  the  Master 
of  the  I{olls  ruled  that  this  evidence  was  admissible  to  interpret  the  will.  .So, 
what  the  le-talorwas  in  the  habit  of  re^ardiiiiias  his  "homestead"  will  explain 
the  word  when  used  by  him  in  his  will.'  lint  a  custom  in  Virginia  to  tnuisler 
land  by  death-bed  donation,  without  a  will,  has  been  declared  iimompcleiit.'* 
.Vnd  it  is  hidd  in  Michi^ran  that  e\idence  of  a  custom  amoiijj;  :i  particular  chiss  ol 
settlers  to  nive  their  farms  to  their  eldest  sous  is  not  admissible  to  eslalilisli 
such  a  ;;i[t  in  a  particular  case,  where  no  direct  evidence  of  the  ;;ift  is  fjiven. 


'  ti  Weill  1.  ..v.'.  ,tntr.  p.  351. 

-  1  1 1  ml.  .^;  \.-.'.'5. 

■1  ;»Sim.  -11 

'  (i(>iili!t  r.  I'.i'ccticy.'i  Uuss.  AM.  624. 

'■  "  If,"  said  till-*  (Il.stiii}?ui.shutl  autliorlly 
on  the  Law  of  Wills,  "any  reasonable  evi 
diMicc  showcil  t  till  I  tlic  won]  li:itl  ;iiiy  inuan- 
ing,  eittier  as  ii.scJ  hy  the  pul)Ilc,,  liy  .xeuli)- 
torn,  or  l)y  llie  testator,  r,(ir<t  IJnnitjlKitii 
ought,  it  would  sc(!in,  to  have  nttinitlcl  the 
cvidoiice,  lU  ret  magi*  valeat.    If  hiH  lord- 


ship's theories  on  iiue-llons  of  |ihilnsi)|itiy 
arc  not  more  solid  diaii  sniiie  of  In-  h'},Ml 
decisions,  he  can  he  re);[.irlei|  us  a  ISacoii 
only  on  tli((  ground  ol  heiiig  highly  cxperi- 
inciilal."     Wigi-.  on  Wills  (O'llaraj,  HI. 

•'  -il  lleav.  lii:). 

"  HopUms  r.  (iriines,  14  Iowa,  7:t.  Anil 
see  .Vtloniey  (ieneial  e.  Diihliii,  :is  N.  II.. ")1'.'. 

«  Wesifall  / .  Singleton,  1  Wash.  (Vii.)  -I'il. 

•  Uiliiian  V.  liiupullc,  18  Mich.  US. 


EXI'LAINiNO    rOLICIKS    OK    INSUUANCK 


401 


Marine  Iiisiiniiii'< 


$  201.  Evidence  of  Usajire  to  explain  Words  and  Phraaea  in  Policies  of 
Insurance.  —  Wlusre  tlio  souse  of  Mn;  w.nds  anil  expressions  used  in  ii  policy 
i>i  either  amljiuuons  or  obscure  on  liie  hxw  of  Uie  instriinient,  or  is  made  so  l»y 
proof  of  extrinsic  circiinistances,  parol  evidence  is  iidiiMssil)!e  to  explain  l)y 
Msape  their  meaning  in  a  given  case.  This  is  the  third  of  Mr.  .Xknoii.d's  rules 
as  to  the  admission  of  evidence  of  usage  in  tiie  ease  of  marine  insmanee,  and 
wliich  are  cited  with  approval  by  snbscqi;ent  authors.'  The  rule  applies  as  well 
1(1  the  construe.tion  of  contracts  of  fire  and  life  insurance  as  to  those  of  marine 
insurance.  The  words  and  phrases  emi)loyed  in  poiiiiies  may  Ix?  obscure  in 
t'n  niselves,  — as,  when  they  are  entire  ly  lechnieal  and  local,  —  so  as  to  he  (|Uile 
•:nintelligil)Ie  to  the  generality  of  pers(Mis  without  explanation.  In  this  case,  the 
ambiguity  as  to  tiieir  meaning  arises  upon  merely  reading  them  as  they  stand  in 
the  instrument;  In  otlutr  words,  is  patent  on  the  face  of  it.  So,  airain,  although 
tin  words  employed  may  have  an  ordinary  meaning,  which  is  suilieiently  inlelli- 
j:ii'Ie  to  people  not  engaged  in  the  business  lo  which  they  relate,  yet  if  tliey  have 
.iNo  another  meaning  when  employed  by  liiose  engaged  in  that  business,  and 
the  circumstances  of  the  case  show  that  such  secondary  or  Jess  gem  ral  sen.se 
must  have  been  that  in  which  they  were  used  in  the  particular  instrument  whose 
meaning  Is  sought  to  be  ascertained,  parol  evidence  must  l)e  ecpially  resorted 
lo  in  this,  as  in  tlu;  former  case,  to  »!.\plaiu  the  real  meaning  of  the  contract, 
by  showin<;  the  .sense  in  wliich  the  parties  meant   it  to  be  understood.- 

V  J()2.  Same  — Marine  Insurance.  —  Kvidcnce  of  usage;  has  been  admitted 
to  siiow  that  the  word  "corn"  includes  every  kind  of  grain,  and  also  beans 
au'l  pcas,^  and  malt,*  but  does  not  include  rici;;^  thai  "salt"  <lot!s  not  in- 
cliitle  saltpetre;""'  that  the  words  "  loading  off  siiore  "  include  loading  at  a 
l)Pi(lge  pier;'  that  "  skins  "  iuelnde  furs;  ■*  that  "  roots"  are  IIiiiIKmI  to  such  as 
an  perishable  in  their  nature,  as  l)eets  and  otlier  garden  roots,  .-ind  di)  not 
include  sarsaparilla;  '  that  insurance  upon  an  "outllt"  of  a  whaler  coveis  a 
a  quarter  of  tlie   catchings;'"  that  bundles  of   rods  an;  considered  as  "l)ar- 


'  .NnRcl!,  May,  and  others. 
-  Arnoulrt  <>ii    Iiis.  89.    .VnJ   see  Coit  v. 
ConiineiT.i.'il   Ins.  (;o.,  7  Jolins.  •\^t\   Sh^Rlit 
t>.  IMiinelaiider,  1   .Inlms.  lt):i;  s.  c.  2  Jdliiis. 
.i:',J;   Hakor   v.   laiillow,  i  Johns.   Cas.  'IS'.); 
.\»ti)i-  u.  Union  Ins.  Co.,  7  Cow.  '20!. 
'  Mitson  I'.  Skiirray,  I'arli  on  Ins.  '2ifi. 
*  Moudy  V.  SuvridRU,  I'ark  on  Ins.  'it."). 

Scott  V.  Bourdillloii,  2  Ito.s.  *,  I'lil.  N.  R. 
iU. 

.Journn  t».  Hourdiou,  I'arl;  on  Ins.  il,'). 

John-on  V.  North- Westorn,  etc.,  lns.(;o., 
3'.MVis.  ST. 

A-ilor  r.  Union  Ins.  Co.,  7  Cow.  'iOH. 

I 'oil  f.  Commercial  Ins.  (;o.,  7.Iohns.  ;j.s.5  : 
Itakert'.  I.udl'iw,  ■>  ,Iohn.s.  (/'as.  -IS'.*. 

.Macy  c.  Wlialinn  Ins.  Co.,  ',»  .Mete.  IkVt. 
''Tlic    question     is,"     said    Hubbard,    .)., 
"wliethorthe  lerin  '  outfits,' as  useil  in  the 
socond  policy,  covers  the  c.utchinK'S,  .'igrcc 
ably  to  the  usage  which  is  alleged  to  exist 


tluit  in  an  insurance  on  oiitflls,  catcliin^'s 
arc  covtM'cd  to  ont!-  fourth  iiarl  of  Mu!  anioiiiil 
of  tlie  oiiUils.  TIk^  word  '  oiiUlls,'  iii  its 
OT-ifjinal  use,  as  applylii'.''  'n  siniis,  embraced 
llio.se  objects  cnuuected  ,viili  a  slup  wlinh 
were  lUM'-es^ary  for  llic  -ailiii);  of  her,  ami 
without  wliii'h  she  woulil  iiol,  in  fact,  be 
navi;;:ible.  Ilincludcil  ihc  sails  and  ris-'^ni^, 
boat.-,  and  provisions  for  Ihe  >liip'>  n-cw  . 
and  it  has  long  since  been  (Ic'.ci'niiiicd  Ihnt 
such  ilenis  ent(;r  into  llic  value  of  the  sliip, 
and  are  covered  by  an  insnranci!  upon  her. 
I  Ph.  on  Ins.  (tst  ed.)  71,  ami  autlioiitii'- 
lliere  cited,  itul  in  .ships  tMiKUKcd  in  wh.il 
inj?  voyaKes  the  word  has  ac(|Uired  a  uiucli 
more  enlarged  >ii{:iilicatn>n.  It  lias  em 
braced  within  it  not  only  Mie  ordinary  tackle 
and  apparel  of  the  ship,  and  the  provision-. 
for  a  cominoti  voyage  from  port  lo  p(M-t,  btii 
the  casks  and  slav(^*,  tlic  llahin^'-^^ear,  and 
the  stores  and  (dotluii);  necessary  (or  the 


9(1 


' 


40: 


lilKllt    AUMrSiSiUILlTY    TO    KXl'LAIN    C  ».\Ti;A(  TS. 


I 


< 


I 


1;' 


ContrjK'ts  of  Mariiic  ;iisiii;imi  . 


iron;'"   Unit  live  stock   is  coniprohendod    witliin    the    tonu  •«  nui^o  " '      in 
TiujiiH-  V.  JirKjyn,*  where  one  of  tlie  sul)je<its  of  ii  cliurter-party  was  cut  Inn  in  iia.L.., 


Kiiccfiwsful  |>r()K(M'iiliiin  of  hik'Ii  voyiigivs; 
nrU<'l(!R  KOt  for  Hiil(>,  lilci;  a  common  oiitwiinl 
r..'irf:;o  of  ,i  ship,  but.  for  coiisuiiiplion  iind  use 
iliiriiiK  a  protracl(!(l  voyage  of  y(!ars,  and  for 
Ihc  sloriMfj  of  till!  cargo  or  catchings  to  be 
ol)laiiiei|.  'I'licse  oulllu  have  tlieir  value; 
and  they  are  converted,  either  indirectly  or 
directly,  into  cargo,  by  their  conHuniption 
and  use  in  procuring  the  cargo,  and  by  the 
taking  of  the  casks  for  the  reception  of  the 
oil.  In  con.sci|iience  of  this,  a  usage  has 
arisen  in  the  adjustment  of  losses  with  un- 
derwrite.rs  by  whicli  Ihc  catchii\gs  have 
been  Kubstiluted  in  the  place  of  outtlts,  to  a 
limited  and  reasonal>'.<!  extent,  and  which 
I'.ustoin,  in  New  Uedfi^rd,  —  the  Icailiug  port 
in  the  world  in  tlic  i.;n'Ml  whale  tishcry,— 
has  been  )ntrodu(  i:i1  into  :(nd  become  a  part 
of  the  written  contiacl  in  their  poli(;ies,  to 
previMit  any  ipicstion  a'- to  the  bii;diMg  nat- 
ure of  the  usag<!.  'Oiillits  '  is  a  word,  tlien, 
of  originally  lln  ited  meaning  as  applied  to 
different  trades  ami  in  it<  application  to 
vessels,  but  it  has  ac(|uired  an  enlarg<Ml 
meaiiiDg  in  the  bands  of  merchants  engaged 
in  whaling  voyag(!s,  ailapted  to  their  grow- 
ing trade;  and,  as  thus  used,  'oulllts'  is  a 
Avord  not  so  clearly  detiiied  and  strictly 
limited  in  its  import,  nor  is  it  of  that  plain 
and  decisive  character  that  we  arc;  re(inirei| 
necessarily  to  bold  that  it  is  used  in  policies 
without  refcienee  to  an  existing  custom  in 
IhiR  important  branch  of  trade,  or  that  the 
partieH  using  it  intended  to  confine  its  appli- 
cation to  the  outfltsaR  they  existed  when  the 
ship  left  her  port  of  departure,  and  which 
were  changing  their  character  every  day  by 
coi\sumption  and  use.  The  contracts  of  in- 
suranei!  are  inarlillcial  instruments  ;  and  the 
common  policy,  as  iiseil  in  whaling  voyages, 
is,  as  to  ntany  of  ils  provisions,  in  nowise 
applicable  to  the  siiliject  of  this  parti(Uilar 
Bpecii;s  of  insurance  We  are  therefore 
called  upon,  by  the  nature  of  the  eoutracl 
and  tlie  character  of  the  extensive  trade  to 
which  it  relates,  to  give  it  a  liberal  construc- 
tion in  order  to  do  justice  between  parties. 
And,  in  view  i)f  Hit!  .-ul)j(!<'t  as  presonted  to 
us,  we  are  of  opini m  that  such  a  usage  is 
reasonable,  and  tiiat  evidence  of  the  exist- 


ence of  it  is  admissible.     ITnle.^s  ilir  iniri'i- 
Rball  agree  upon  the  inattpv,  it  i-  \u  U,-  ,ui, 
mitteil  to  a  jury  to  in<|Uire  into  llic  c\:  -leaci 
of   such  a  usage,  and  whether  the    partn'^ 
contracted  in  reference  therein  ;  :ii,(|  ii,(.  j., 
quiry  will  be  whether  the  u.-age  i.^  yciuMMj 
to  all  who  are  coMcerned   in   the   trade,  oi 
whether  it  is  a  local  usage  and  cumlncd  t" 
the    ports    of   the    Coiumoiivvc.illli ,   and   if 
local,  whether    the   ineiThanl>  and  under 
writers  in  .Nantucket  and    IJosimi  aic  on 
versaniwitb  it,  and  practi.^e  upon  i!.     .\n.: 
if  the  jury  shall  find  that  such  ii-a;;.   i-  ^r,.,, 
oral,  or,  if  local,  is  in  for<'e  anmiiL;  ilif  per 
sons  enga.ired   in   the  trade  as  ow  ncr-.  aim 
underwriters,  in  Nantucket  and    li(j-i>iii  ;i- 
well  as  at  New  Wedfuid,  and  that  it  eiilcr- 
into    the    construction    of    lliiir   contract-, 
where  the  word    'outfits'  i^  u-cd.  witimu! 
explanation,  as  extending  to  a  iiiotiun  of  ihi- 
catchings,  then   the   policy  elli'iiil  at    th. 
SufTolk  ofllce  will  be  h  Id  locMiml  |.i  ili. 
(;ateliiiigs,  in  ascertaining  the  hi-.-  {••\n-  \i.rj: 
by  these  defendants.     Hut  if  the  cii-iuin  l^ 
limited  to  the  port  of  New  ltcdford,oi'  i-  iim 
well  known  or  established  in  .Naiitiickcl  am: 
Hoston,  then  it  <'annot  beadmillccl  i<>  alli'c: 
the  construction  of  the  defendant-'  )inlicy, 
orto  lessiMi  the  amount  '.if  their  c.ontnlin'  •:■' 
share  of  the  loss.    A  iiucsiion  has  al-H  inci 
started,  and  may  be  iiece.-sary  to  be  .-iiilc'l. 
whether  the  word  'cargo'  include.i   Wili  ii. 
its  meaning  the  oi'tlll-;  as  well  as  the  lahli 
ings;  and,  also,  how  far  the  pcdicy  at  tin 
Ocean   ollice  extended   to  catching-,  whili 
the  oiitllts,  Huflicient  in  amount  to  cover  i)i 
amount  at  risk,  remained  on  board  the  \c- 
sel.    These  are  important   ((uesiioii-.     T.n 

word  '  cargo  '  is  not  of  such  coinimo im 

rcnce  in  Knglish  policies  of  insiiramc  ,i- 
with  us.  They  use,  in  lieu  thereof,  ;l,i 
words  'goods  and  niercliamlisc'  Ki 
'cargo'  is  a  word  of  n  large  iinporl,  ami 
means  the  lading  of  the  ship,  of  «  haicv  ■•!  ii 
consists;  and  we  see  not,  in  prinrlpli',  win 

it  may  not  cover  the  outfits,  whidi  are  n i- 

of  value,  as  well  as  the  'catchings,"  whi.l. 
is  the  techni<'al  word  that  includes  the  liluli 
ber  taken  on   board,  the  od,  and  the  .a- 1- 
Hut,  whether  it  should  be  so  applic'i  i'  n  i 


'  KvanstJ.  Commercial,  etc.,  Ins.  Co.,  ()  K.       i:i(i;  «.  r.  (i   liar.  A  J.  408;  JO  Am.  Dec     ).'.i 
1.47.  14  Am.  Dec.  li)W. 

•  Allegro  V.  Maryland  Ins.  Co.,  '2  Gill  A  J.  '  -2 Car.  Jt  V.  tii5.    ."^ee  also  Ui-ay  v.  Ilai  jpci , 

1  Story,  .')74. 


ii 


KN;I MNIMi     l'()i.i(:il>     Ol"     l.VM  KANt.K. 


•iM,. 


Cii'n'^lJIliirK'jll   Trrnis. 


In          ^1 

)t  Ion      l)a.L>,          ^H 

CS.S    till'                                   ^H 

III                     ^H 

II                            ^H 

iiii'                    ^H 

till'             ^1 

a^'c  i.>  t;i'ui'i'.i.             ^H 

III         ^H 

^H 

^H 

il.->  and  miller            ^H 

o.^liiii          cm             ^H 

upiiii          Am;            ^U 

h  U'-:i^'r  !~  ^ri'ii             ^H 

Ilii'  pur             ^H 

i^                                   ^H 

ami    ll(i-|iiii                 ^^1 

thai                            ^B 

^H 

ll-ril.  Wlllliitl'.               ^^M 

I  |>>>l'lMll  mT  IIH'                 ^^M 

iiii         ^H 

I'Mciid  til  (III               ^H 

I'l-^."  til  1)1'  p;i  iij               ^^H 

till'                                     ^^1 

ilforilgOl        lint              ^^1 

Naiitiickcl  aiiL'             ^^B 

iilli'il  III                       ^H 

iilaiit'^'  policy,             ^^B 

irt'.oiilriliu'  <-              w!m 

has  alMi  iii'i'i              V  ;:1 

,■    to  be  -I'llll'ii,                   ■;      1 

I'luiles   uiliiii.               [:■    1 

I  as  thiTMh'l.               P-:} 

policy  at  till             ■*?-'  1 

tcliiiij;.-,  wliili                      j 

It   t(i  Ciivor  li'i                        ; 

joard  llic"  vc- 

ie.>tii>iis.    Till 

IIIUiliiii  uri  lii 

iiisuraiii'i'  .1- 

tlllTClif,    '.111 

anilisi'.'       r.iii 

I!   Iniport,  anil 

)f  \\  half*  I'l'  1'               |h 
n-iiicipli',  w  in               £L, 
licli  an- t;.M,.|-               K 
liiiijjrs,'  \\  liji'li               K' 

nlfs  the  liluli                B 

and  till'  iM-  1-              mjt: 

applit'il  1  <  11  'I             R 

Am.  Di'i     r.'.'i               1 

ray  i-.  Ilurpiir,              B 

parol  evidence;  of  Hh;  iinrcantih!  meaning  was  ivdiiiittt'd  to  ^show  whiii,  ;t  "  biik" "' 
was.  In  Broiujh  v.  W7ti<//;'(/'^,'  tlu;  '•iistoin  of  the  trade  that  provisions  .-cnl.  otit  in 
the  ship  for  the  uh<!  of  tht-  eixw  siio:ild  i)e  conslden'd  as  "  ftiniitiire,"  w  Itlilii  tiial 
word  in  a  poFKry,  was  udiiiitled,  and  eonlrolled  the  decision.  So,  eviden*  c  of  iisairf 
has  been  hetird  to  .sho\vMi;it  tli<;  words  "  floods,  specie;,  and  effciets,"  in  a  policy, 
cover  a  sum  of  money  ;ul\;incod  by  tlie  captain  for  tlie  bcnetlt  of  the  yiiip,  and 
for  which  ho  ciiarL'es  resptindi  ntia  interest.^  In  Uli'fjht  v.  Rhinelundi  r,-  tin 
Supreme  Court  of  N'-w  Yorlv  refused  to  receive  evidence  of  tlie  comicircia! 
iiicaninj?  of  tlie  irm  "  si'.i  ]ett«'r,"  in  n  policy  of  iiiariiK;  iiisuram  <  ,  nn  tin- 
jrioiind  that  the  nu-i:re  ol  tiic  doetinumt  was  settled  l)y  public  treatte.s  ai.'  acts 
of  (Ninijress.  On  appeal,  tl;c  Oourt  of  I'^rrms,  while  const iitiii;;  tin;  'aokI^  as 
nicaiiins  '•  diff<;rei!l  ti'inir  froni  ilie  iiRMniiij^  put  upon  tluiiii  i)y  llie  conn,  in  low. 
and  reversinj?  llie  jiidijinenl  on  tliis  j^round,  were  likewise  of  opinion  tli.i!  if 
lliure  had  been  any  ('oubt  or  olw(;urity  on  tlie  subject,  parol  testiinoiy  -l.o'.tld 
have  be(;n  admitted  to  <'.\(  •aiii  it.-  And  proper  evidence  of  a  <;ustoin  wmild  lie 
Hdinissible  to  sliov/  that  liic  words  "  whalinj;  voyajjt;  "  include  the  lai;  i.z  of 
sea-elephants  on  the  be.n  Invs  of  islands  and  coasts,  as  well  as  the  (;:it(.liin;i  of 
whales  whereever  found;'  ■liat  the  ,',ord  "proceeds"  includes  the  idi mical 
Snoods  insured,  il  brow^lit  l)ack  on  tlie  return  voyage; ''  that  tlie  term  "  patti(  tilar 
iiveraKe,"  does  not  n-^Iude  expenses  which  are  necessar.ly  incurred  in  onier  to 
isav  the  subject-matter  of  insurance  from  a  loss  for  wiiich  the  insui»;is  \vould 
have  been  liable,  and  that  these  are  usually  allowed  under  the  naiut;  of  parlieidar 
charges;'  so,  the  w  ids  "port  risk,"  in  a  policy,  maybe  explained."  So,  i!  was 
held  in  one  case  that  the  words  "sail  from  St.  I)omin;;o  in  the  tnoiiili  of 
OetolMir"  were  to  be  ui'''erstood,  when  taken  in  connection  witli  tin  nsiiije  of 
the  trade,  as  indicaliniij  iiiat  the  ship  would  not  sail  until  tlie  2oth."  /\nil  tin; 
phrase,  "warraii','  d  to  depart  with  convoy,"  has  been  literally  constriu'd  aecord- 
ing  to  the  usaRC  .■.moni;  n..'i,  liiinis.'" 

Likewise,  where  <;eo;jjra(»hical  tcirms  are  used  in  a  policy,  it,  may  t)e  shown 
tliat  th(  meaning  pti*.  upon  them  by  mercrantile  men  is  difftuvnt  from  tlieir  com- 
mon ineaniu}!  as  ^iven  in  l)ooks.     Thus,  in   ?///</.    v.  Walters,"  deeidel  it.    IHll, 


(rrp  from  dmiht,  because  the  word  '  oulTits  ' 
l»  so  generally  usimI  loexpross  ll.<!  out  wnnl 
lading,  from  which  it.  m.iy  be  reason;. lily  in 
tcrre<l  thai  Ihe  word  '  c;ir!j;i>' i.s  limited  iiy 
the  piirtios  to  the  <'afi;liingrt  of  the  -hip.  Ilu' 
on  this  point  we  do  not  now  feel  called  u|)on 
to  express  an  opinion,  as  the  case  may 
ai;;iin  come  before  us,  when  the  fact>-  Hhull 
be  more  clearly  fiettled  by  the  further  agrce- 
nienl  of  the  priflies  or  the  verdie.l  of  a  jury. 
\Tc  do  not  see  any  re;i,-o!i  in  conliiie  the  <!oii- 
hI ruction  of  the  policy  .'it  the  Ocean  odice  lo 
the  •  outlUs,'  after  there  h.%'  ii  been  eatchiiig.s 
iilit;uned,  until  the  outtlts  to  the  unieunl  of 
the  sum  insured,  are  exhausted ;  otherwise 
th(!  plaintiffs,  if  nw  other  policy  hart  been 
etfe<'tud,  would  have  suffered,  to  u  c<;rlain 
•"xleiil.  if  not  wholly,  their  <'atehinKH  to  re- 
main  unprotected,  which  surely  wa."  not  the 
dvbigii  of  the  contrucl.    Unless  the  partleji 


agree,  the  cause  will  he  sent  to  a  jie  /,  to  a- 
eertain  the  existence  of  tliecu^'        allegi  >( 
by  the  di'fendants,  ai.U  its  n;,lii  •    and  e\ 
;i;nt,  as  herein  stated." 

'  4  Icrm  Itep.  206. 

-  tiregory  v.  Christie,  .1  Doug.  4  I'.i 

'  1  .Johns.  1():{. 

<  sli'ghi  c.  Uhinclander,'/!  Johns    :<.-,. 

'^  <  'liihl  r.  Sun  Mutual  Ins.  Co.,  .   '  .;i.i|f.  Jii. 

"  l)(i\v  r.  Wlietton.S  Wend.  li;c 

'  Kiiistiiii  V.  Kinpirc  Marine    li  -    <'i>.,  I.. 
l{.  I  r.  ]'.  :,:>,:,. 

"  Nelson  c.  Sun  Mutual  Ins.  Co.,  71  N.  ^. 
45;!. 

•'  Chaurand  v.  Angerstein,  I'enki:  N.  1*.  til ; 
Yules  r.  Duff,  .5  Car.  A  I',  litit). 

'"  I.ethuher's  Case,  2  Salk.  443.     And  see 
Itobertson  v.  French,  4  East,  130. 

«  3  Camp.  19. 


I, 


401 


TllKIU    ADMIiSMIULITY    TO    KXTLAIN    CONTUACTS. 


(icoiinipliical  'IVriiiH  in  Murine  rolicics. 


li 


the  policy  was  from  London  to  any  port  in  the  Baltic.    Tlic  ship  was  captured 
while  procoedin,!;  to  Reval,  in  Mic  (Jiilf  of  Finland.     On  tlic  trial,  the  piaiiitift 
proposed  to  call  witnesses  to  prove  that  the  (iulf  of  Finland  is  con^idin  d  l,v 
nantical  and  commercial  men  .is  within  the  Baltic,  altliou.nh  the  twn  .>«(  a«^  ur. 
treated  by  f;('0;?''apliers  as  scjiinite  .and  distinct.     Tlie  defendant  answered  th.u 
it  mi;;ht  as  well  be  contended  tliat  a  policy  to  the  Mediterraneuii  would  \iv,\  ei 
the  ship  in  8ailin<;  to  any  port  in  the  Adriatic  or  Black  Sea.     But  Lord  Ki  1 1  \- 
BOKOiJUii  said:  "I  know  not  what  the  effect  of  tlie  evidence  offered  ni;i\  he, 
bnt  1  think  it  is  clearly  competent  for  the  plaintiff  to  prove  tliat  the  IJa.iie  1^ 
numen  gemrale,  comprehendinj;,  in  common  understanding,  the  ^ulfs  auil  iiil 'i,, 
which  communicate  with  the  sea  laid  down  as  thi    Baltic  in  Keonraidiicul  eh uls. 
If  the  (Iulf  of  Finland  is  to  be  considered  as  within  the  Bultic,  the  sliip  was 
sailing  on  the  voyage  insured  at  the  time  of  the  capture,  and  there  can  l)e  ini 
objection  to  admit  evidence  as  to  the  understood  limits  of  any  particular  mm." 
Several  witnesses  were  then  examined,  who  stated   (hat  all   witliin  the  Mnind 
was  considered  as  tl>c  Baltic;  that  licen.ses  meant  to  protect  ships  to  tlie  (iidf  of 
Finland  were  made  out  usually  to  the  Baltic.     Lorcl  Fi,i,knhok()1!<;ii  tlioii-jlii  Hie 
evidence  sufllcient  to  establish  the  point  in  question,  and  the  plaintiff  h.nl  ;i  \ei- 
<lict.    A  year  later,  in  Moxon  \.AtkinH,^  the  policy  was  at  and  from  .\iii(  lia  I>l;uid 
to  London.    There  was  no  port  on  the  island,  but  a  little  farther  up  is  i  izie 
Island,  where  ships  u.sually  stop,  and  in  this  ea.se  the  car<;o  was  loaded.     I,i>rd 
ELLKNitoitouGii  said:  *'  The  words  of  the  policy  cannot  be  literally  underst.i m, 
for  there  is  no  port  in  Amelia  Island  where  the  ship  could  load.    The  real  (im  s- 
tion  is,  whether  there  has  been  a  loadinjj;  at  Amelia  Island,  within  the  nieaiiiiiu' 
of  the  parties,  wlien  the  policy  was  effected.    Strictly  and  locally,  there  lias  iieeii 
no  loadin<;  at  Amelia  Island;  but  it  is  possible   that  in  mercantile  eoniraet^ 
Amelia  Island  may  denominate  a  region  in  which  Tijire  Island  is  eornpreiieiided. 
Essequibo  has  been  held  for  .some  purposes  to  be  Demerara,  altlioufjli  1  he  two 
settlements  are  quite  distinct.     There  is  the  more  familiar  instance  of  Wist- 
minster  being  considered  in  Londcm,  the  general  name  for  the  metropolis,  yet 
we  know  that  in  strictness  London  only  comprehends  the  limits  of  the  city."' 
Subsequently,  in  AVi/j'ct.so/i  v.  Clarkf,^  under  a  policy  "from  Van  Diemen's  l/nn! 
to  a  port  or  ports  of  loading  in  India  and  the  Indian  ishiinl-','^  it  was  held  in  tln' 
Cor-mon  Pleas  that  although  among  geographers   Mauritius  was  deetned  .ui 
Vfricau  island,  yet  parol  evidence  was  admissible  to  prove  tiiat  in  coniiiien  i:il 
language  it  was  considered  an  Indian  island.     In  Grade  v.  Mm-nfand  hisdnmci- 
Componn,*  the  admission  of  evidence  of  a  custom  to  consider  the  landing  al  the 
Lazaretto  a  landing  at  Leghorn  was  approved.     In  Cohh  v.  Liim-  Ruck  liisur.iiiri- 
Company,^  a  usage  at  Boston  not  to  regard  the  Strait  of  Northunilierlmid  ,i- 
within  the  Gulf  of   St.  Lawrence  was  held  by  the  Supreme  (Jourt  of    iMann 
inadmissible,  but  only  on  the   ground  that  it  was  a  locjil  and  not  a  neiuiiil 
usage,  was  not  known  to  the  party  to  be  affected,  and  therefor.^  could  not  i)iiid 
him.     In  an  Alabama  case,  evidence  of  usage  was  admitted  for  the  purpose  o\ 
showing  that    'the  port  of  New  Orleans"  embraced  the  wharves   on   Lake 


1  3  Camp.  200. 

-  .See  Midlaii  r.  iM;iy,  K!  Mee.  &  VV.  511. 
<  1   Iting.  Urt;  Itubui'Uou  v.  Money,  Kyan 
AM.  7-.. 


<  SCriiiicli,  ir>. 
''  08  Me.  li-itl 


EXi'LAIMN(J    (;ONTKA(T«    OK    INSIJUANCK. 


4(»; 


Kirc  FolicifS. 


was  caplnrcil 

I  till'  pliiiiitil't' 

OIlsidlT.d  l)y 
two    SCfl.:    111-,. 

tiswcrcd  iliiit 
vould  piMtci 
Lord  Kill  \. 
'(•r(!fl  iii.iy  be, 
till-  Ha, tic  i^ 
Ifs  and  iiilil.-. 
[iliical  ell  irl>, 
the  slii|)  was 
Tc  can  lie  no 
I'liiMilar  SIM," 
in  the  smiiid 
to  tlic  (Jnlf  ol 

II  tlionuhl  tlic 
tiff  iiad  M  \(r- 
Aniclia  l>l;ui.l 
!!•  np  is  'ri',n-c 
oiuii'd.  Li)rd 
y  undcrslii.Mi, 
riie  real  (pio- 

I  the  nicaninii 
hore  ha.s  ixim 
tile  c'onlracti 
)inpn'h('ndt'd. 
oiifili  Mil"  two 
nice  of  Wcst- 
ictn)|)olis,  vet 
of  the  city."' 
ijcincn's  1/iiid 
as  held  ill  llir 

S    (icCIIlcd     Mil 

II  C()lllllli'rri;ll 

and  Iiisiirnuci' 
uidiii'^  al  tlic 
i(((7.'  lu.-iiir'iiicc 
Uiiihcriaiiil  :i- 
iirt  of  iMMiiu- 
not.  a  mMici'iil 
[iiiid  not  bind 
Ik.'  purpose  ul 
•vu.s   on    I>ak(' 


Pontclmrtniin  a.s  well  as  tlie  levees  on  the  Mississippi. '     Tiw  word  "  town,"  ii> 
used  in  a  contract,  may  \w  shown  to  mean  tlie  town  itself  and  I  In-  vicinity.' 

j  203.  Same  —  Fire  Pollcioa.  —  Con.sort  to  tlie  rule  above  staled,  that  when  a 
word  is  used  in  a  technical  or  peculiar  sense,  as  applicable  to  any  trade  or 
brunch  of  business,  or  to  any  particular  class  of  people,  it  is  proper  to  receive 
evidence  of  nsa-jc;  to  explain  and  illustrate  it,  are  the  following!  cases:  To  an 
iiKjuiry  in  an  application  for  insurance  upon  a  manufactory,  ".Are  there  casks 
in  ea  h  loft  const  iiily  supplied  with  water?"  the  answ(!r  was,  "There  are 
ineacii  room  casks  kept  constantly  full."  il'd,  thiL  evidence!  was  adini^-ible 
for  the  assured  that  ainoiif?  manut'actunjrs  ihe  wliole  of  a  loft  or  story  appro- 
priated to  a  particular  <lepartmeiit  was  called  "one  room,"  altbouirh  the  same 
was  divided  by  partitions  with  doors.'  A  policy  on  u  country  store  covered, 
anion";  otlier  thin<;s,  "store-tlxturcs."  //(/(/.  that  evidence  of  a  well-settled 
custom  amon:;  underwriters  and  the  coniniiinily  generally,  by  which  the  terms 


>  Mobile  iMai'inc, etc.,  Ins.  Co.  j;.  .McMillan, 
27  Ala.  77.  A.s  to  tin;  ollcot  of  iimiku  on  the 
mcnniiig  of  gcograplii(Ml  worcf^t,' see  h'ay  i;. 
Alliance  Ins.  <;o.,  ♦)  <iray,  I.m;  "city  of  hon- 
dim,"  Mallan  v.  May,  13  Meu.A  W.  511; 
"harbor  uf  Boston,"  iMurlin  v.  Hilton,  1) 
Mole.  ,171. 

-  .Steyer  v.  Dwyer,  lil  Iowa,  20. 

"  Daniels  V.  Ilud.'^oii  Itiver  Iii.s.  Co.,  12 
Cii.'^h.  410.  "If  the  plaiiii.itl'.-t  iDloiiilud  to 
cmiform  their  answer  to  the  qnu.stion  pro- 
pii!ii.'d,  then  it  ia  inaiiifcit  that  in  their  view 
the  word  '  loft' in  (lie  (luostion  ami  'room' 
ill  the  answer  would  mean  the  same;  thiiiKi 
and  the  effect  of  the  answer  wonM  be  that 
a  caKk  was  kept  in  each  loft.  This  would 
raise  another  question:  whether  the  term 
'loft'  would  include  the  basenioiit  story,  or 
only  the  chambers  over  the  basement  —  the 
'rooms  aloft.'  Or  did  it  mean  each  story? 
Those  considerations  are,  pcrhajis,  not  ma- 
t('ii:il,  except  that  llicy  have  sonic  lendc^c.y 
til  show  that  the  word  '  room  '  was  used 
willmut  any  very  piecisc  or  ilcllnite  mean- 
in;:.  The  evidence  offered  f<n-  the  i)uri)i)so 
ol  falsifying  this  re|)rosentation  was  that 
thei'u  was  in  the  basement  story  a  partition, 
fettiiiKolf  a  part  for  a  i)articular  pmpn-c, 
in  which  no  water-cask  was  kept;  tha!  in 
the  next  story  .above  there  was  a  small 
apartment  partitioned  off,  in  which  lliero 
was  III)  water-cask;  and  in  the  two  stories 
above,  the  water-casks  stood  in  the  entry- 
ways  by  the  doors  of  the  main  room-;,  and 
not  in  the  main  rooms.  If  the  plainlitfs,  in 
answering  the  interrogatory  as  put,  Intended 
tu  say  thai  there  is  a  cask  of  water  kept  for 
each  loft,  or  each  story,  the  Jury  might  well 
find  that  the  representation  was  true;  it 
they  intended  tu  use  the  word  '  room '  ia  a 


narrower  sense,  sn  as  to  mean  more  th;iu 
one  a|iartment  in  eac.li  loft  or  story,  then  it 
becomes  iiecossaiy  to  in(|uire  what  was  the 
extent  of  the  word  'room'  as  used  ni  this 
answer.  Tlie  word  is  certainly  a  familiar 
one  in  the  Kiiglisli  lan.i;'ii'iKe,  ami,  as  ordi 
narily  iiseil  and  coii^lriii;!,  ii-  all  word  •  iinn-l 
be,  by  the  subjee.t matter  and  the  context,  is 
not  likely  to  be  misunderstood;  yet  it  is 
not  wiiliont  some  considerable  varieties  of 
meaning.  A|)|>ly  \l  to  .a  dwelling-house; 
and  suppose  one,  in  offeriii<;  a  hou.se  to  be 
sold  or  let,  should  represent  that  there  is  a 
flr(!i)Iace  in  every  room.  Sui)po.se  there 
is  a  cellar,  or  an  attic,  with  or  willioul 
windows,  are  they  rooms?  Or,  su|)po>o  a 
large  apartment  into  whieli  tl<i>  front  door 
opens,  used  for  the  double  purpose  of  an 
entry  and  for  a  sit  lini^- room  in  warm 
wc.-Uher,  and  fiiriiisbiMl  for  that  purpose, 
is  it  a  room,  within  the  reiireseiitation  that 
there  is  a  llriiplace  in  it  ?  Or,  siripime 
above  stairs  one  or  more  small  aparhiieiits, 
capable  of  being  ii-imI  a-  a  closet  or  tjlothes- 
press,  or  for  u  bed  room,  would  the  rcjire 
senlation  be  falsilied  by  showing  that  either 
of  these  divisions  of  the  house  li.nl  no 
lireplace  in  it  V  The  !angiiapce  mij^'ll  be 
somewhat  ambigiion-',  and  requires  aid  to 
ascertain  its  meaning.  *  *  *  In  the  jires- 
ent  case,  we  are  of  oiiinion  that  iheir  was 
sntlicicnt  uncertainty  and  ambiguity  in  the 
representation  in  (pic-iion  to  warrant  the 
introduction  of  evidence  of  n>age;aiid  it 
was  a  question  of  fact  for  the  jury  to  decide, 
whether,  according  to  the  true  nleanlIl^'  of 
the  lang.iage  u-ed,  the  representation  was 
substantially  true  when  made,  and  sub- 
stantially complied  with  afterwards." 


406 


THKIR    ADMIMMIJILITV    TO    KXIM.MN    rONTKACTS. 


Firo  I'olicii'a. 


<'fIxt»r«H'*  and  "Htorp-flxtnros"  were  iscd  in  insurance  to  dcnKtc  ai:  Uic 
ii'>v!il)le  articles  of  whops  and  warci.onscs  wliidi  arc  convftnicnt.  and  iMciv-^iirv 
!i>r  use  in  llio  ci>nr.sc  of  tra(!c,  wa^  a(linissii)lc.'  in  ilu-  application  fc.r  iii>iiir- 
arici',  in  answer  to  Mio  question,  "for  wlial  purposp  tlu^  bniidin^  was  iisi-d,'  [\\r 
plaintiff  replied,  "  Tol)acco-pressini;;  :»o  manufactnrini:."  It  apixund  iIkU  in 
ashed  adjoinin:;  tin;  main  bnildinu;  tol)a(  co-ho^jtslieads  wen'  niatinfartnnMl.  mil 
the  company  claimed  that  this  was  a  hreacii  of  the  warranty  and  vitiated  the 
policy.  Ilrld,  that  tlie  plaintiff  mifjht  prove  that  the  t)nsiness  of  niakin'i  tin' 
lio<;sht'ad8  in  which  the  tobacco  was  packed  was  incident  to,  .md  api)eriain<'(l  to 
the  i.ijsineHS  of  prtssina;,  and  l)y  <;ci)eral  custom  was  inclmicd,  and  iinderstoo.l 
to  be  incltidud,  in  the  terra  "  tot)acco-pressin;j,"  without  !)ein<;  s|iecia!ly  i:i.  ii 
lioned.  "  If  such  were  the  fact,  there  was  no  false  warranty,  and  it  was  no  iiiorc 
necessarj'  for  the  plaintiff  to  state  tliat  bram  h  of  the  businr->  than  the  oih.r.  '  ' 
In  a  policy  of  insurance  ajjainst  loss  or  damase  by  lire,  one  of  lUc  conditions 
was  ijiat  the  insurer  woidd  not  l)e  liable  for  "  (he-  by  lijihtnins;."  Ifrhl,  tliat  llic 
|)rai'tice  and  usa-^e  of  (jlher  insiwanci!  i;oni|>anies,  it  strict, inj;  their  !ial)iiity  to 
losses  uccaHioned  by  actual  burninj;  l)y  lijititiiint;,  niay  be  resorted  to  to  show 
that  the  insurers,  under  such  a  policy,  are  not  liable  for  the  destrucliun  of  (hi! 
house  insured  by  its  beiufx  rent  and  torn  to  pieces  by  lij^hlniiii;,  withoiM  beiim 
burnt  or  consumed.''  A  buildinj?  was  described  in  a  policy  as  "  a  frame  house 
lllled  in  with  bri(  k."  ffeld,  that  it  was  competent  for  the  assured  to  prove  a 
usaije  as  between  insurers  and  assured  that  a  house  illled  in  in  front  and  rear, 
and  supported  on  the  one  side  In  the  wall  of  an  a(lj<)inin<;  tiouse  filled  in  with 
brii'k,  and  on  the  other  by  a  brick  wall  of  an  adjoiuin-^  house,  was  considered 
as  a  "frairti-  house,  lilled  in  with  brick,"  within  the  nuMMins  <>f  the?  policy.' 
A  policy  was  written  on  a  ship-buildev's  stock  of  ship-tiinlier,  "  ("ontained  in  the 
yard  and  buildings  I  herein,"  bounded  by  certain  streets.  Kviaence  was  oftereil 
and  received  to  the  effect  that  it  was  the  custom  of  the  owniirs  cf  sliip  yards  to 
keep  their  tdock  of  timber  on  the  sidewalks  and  in  the  streets  in  t,lie  vicinity  of 
their  yards,  a-  much  so  as  within  the  yards.  Some  of  th<'  lumber  dest-oyed  was 
on  the  sidewalks,  partly  in  the  street  and  partly  within  the  yard,  whicii  was  in 
places  nnfcnced.  Held,  that  the  evidence  was  properly  received  to  show  what 
was  the  mcaningof  the  terms,  "  stock  of  ship-timber  in  a  ship-yard,"  as  used  by 
the  parties  in  the  policy,  and  to  define  the  term  "yard,"  as  applied  to  ship- 
building.* A  policy  on  a  machine-shop  stipulated,  "a  watchman  kept  on  tiie 
premises."  Held,  that  evidence  of  the  usa-^e  of  similar  establisliments  not  to 
keep  a  watcliman  constantlj',  but  only  durins;  portions  of  the  twenty-four  hours, 
was  admissible  to  construe  the  meaninu;  of  the  terms.*    The  property  insured 


'  Whitniarah  v.  Conway  Fire  Tns.  Co.,  10 
t;ray,  :m.  "If,"  said  Cliapiiian,  .f.,  "Ilie 
term  '  storc-flxturcs'  is  a  term  of  trade  eom- 
niotily  used  iiinonB  traders  and  iii8urer.s,aud 
is  used  in  hiicIi  a  signification  as  to  iiso  any 
or  all  the  articles  mentioned  as  such  in  the 
leport,  thoHU  were  iusio-cd  l>y  this  iii)li(!y. 
The  pun)!  evidence  olleicd  on  tliis  subject 
was  proper,  mid  ouglit  to  have  been  ad- 
mUleil.  ' 

=  Sims  r.  Hlalc  Ins.  Co.,  47  Mo.  .M. 


3  i;abcocli  7".  Monigoinei-y,  elf.,  Ins.  Ci'.,G 
Barh.  t;:i7;  s.  c.  i  S.  V.  ;wii. 

■"  Kowler  V.  yKliia  I'lre  iii.s.  Co.,  7  Wcnil. 
'270;  Mead  v.  North  We-eii.  Ins.  Co.,  :  S.\. 

f'  Webb  V.  Niitioi!:il  Kiit  Ins.  Co.,  2  .Saiiilf. 
4't7. 

«  Crocker  v.  I'eoiile's  Mutual  Ins.  Co.,  H 
Cii."!!.  7it.  And  see  Houghton  '.  Mamitac- 
tinvrs'  Ins.  Co.,  8  Melc.  lU;  t'ercival  ». 
Maine  Mutual  Ins.  Co., '»  Me.  iVi. 


KXTLAIMNO    CONTRACTS    OK    INSCHANCK. 


107 


Fire  Policies. 


""If  (ii;  iii(. 

11(1    IM'('rs>.;iry 

'II  f(<r  iiwiii-- 

l"*   I'SCll,'      111,. 

iin-d  t!i:ii  ill 
iftiircd,  ,111(1 
vitiiiicd  till' 
"Ml^iiii;  liic 
»I"Tlaiii.M|  to 
iiiiilfrsto<i(| 
I'ciuily  iiirii- 
was  III)  iii()|-(> 
liic  otii.T.  '•■ 
(■  ( oiiilitioiis 
''•/'<,  lli.it  the 
r  lialiiiiiy  to 
to  to  ■<\unv 
H'tioii  of  (hi; 
illioi;!    Iiciiii^ 
rami'  lnmsi. 
lo  prove;  a 
)iil  aiul  rear, 
llli'd  in  witli 
i  (considered 
thi;  |)i)liey.' 
Laiiied  in  t.lie 
^^:ls  offered 
li!|i-,V.inls  1,0 
c  vieinity  of 
.*<t;'()ycd  was 
liieii  \va.s  in 
sliow  wliiit 
'  a,s  used  liy 
ied  to  .ship- 
I:opt  oil  tin; 
ents  not  to 
■four  lioiir.s, 
rty  insured 

'•.,  Ills.  Ci'.,C 

Co.,  7  Wcini. 
s.  Co.,  7  N.  \. 

Co.,  2  .Saiulf. 

il  Ins.  Co.,  H 

r.  Maniifac- 

I'crcival  v. 

12. 


was  (Inscribed  in  the  appliciitioii  .-md  policy  as  a  "hrici;  (l>velliii<;-li(>iiH(>  and 
wood-iiousc,  •  •  *  occupied  for  till!  usual  purposes  l>y  a  tenant."  Il  appear' >1 
'hit  the  "  wood-lioii.so  "  wan  built  .-it  oni;  lime,  liad  but  one  frame,  was  ail  niidi  r 
0  le  roof,  and  was  desiiined  forone  liuiidinf^  —  u  wood-liouse  and  ••.•nriam'-lioiise; 

It;  wood-room  consliliited  two-thirds  or  iriore  of  llii'  cntin;  bniidinii,  .ind  was 
separated  from  the  earriay;e-roonj  by  a  loos<»  partition  altoiit  seven  ftct  liinh, 
wiiieli  extended  to  the  eaves  on  oue  side;  and  not  so  iii-ili  on  the  other  sjdc, 
having  a  distance  of  about  seven  foct  betw«;en  the  top  of  tlu;  partition  and  tlie 
rid^'e-jiole.  In  nn  action  on  the  policy,  the  company  set  up  as  a  defence;  a  false 
r  presentation  on  the  part  of  the  a.ssured  in  stalini^  tliere  was  no  other  biiildiii}; 
iviitiin  four  rods  of  (lie  premises  insured,  claimin;;  tiiat  Mie  carriai^e-lKHise — 
part  of  tlie  wood-house  —  was  a  separate  buildin-i,  which  .shoiiUI  liavc  been 
mentioned.  Jl*'ld,  that  the  testimony  of  d  innts  and  nel^ihbors  that  tlie  building 
ill  which  the  wood-house  and  cairi.isje-rooii/  were  liad  always  been  (  onimoiily 
known  and  described  as  the  "  wood-hoiis(;,"  was  admissible.'  A  iiiiljcy  on  a 
two-story  factory,  with  attic  and  ba.sem"ni,  contained  this  pro\  ision  :  "  Water  on 
each  floor,  vvitli  liose,  and  a  watcl.ii.  '■■■>  is  to  be  kep\  >n  the  pr(;mises  at  iii;  'it  " 
Ifi'ld,  that  evidence  was  proper  to  diow  that,  acconiin^  to  the  iLsage  of  the  trade, 
neither  tlie  attic  nor  th<;  basement  wfru  coiisk,.  red  as  "  floors."  -  A  policy  con- 
tained a,  provision  that  it  should  not  include  "mills  or  manufactories  of  any 
kind."  With  tlie  consent  of  the  company,  the  owner  kept  hay,  straw,  produce, 
etc.,  on  the  prendses;  this  lie  afterward  ^ave  up,  and  ivept  broom-corn,  and  made 
brooms  by  hand.  Held,  that  evidence  of  ui'a'xe  was  adnii.^.^ible  to  show  thai  tliis 
oecupation  did  not  come  within  the  prohibition  of  "  mills  and  mannfactories."  ' 

On  the  other  liand,  in  a  New  Yorlv  case,  where  the  house  insun;d  was  described 


1  Wliite  f.  Muluid  Kiie  Ins.  Co.,  8  Gray, 
m. 

-  New  York  Belting  Co.  r.  Wa.shington 
KIrcIns.  Co.,  10  IJosw.  t'.!S. 

'  Fniiiklin  Fire  Ins.  Co.  r.  Urcck,  .i7  I'a. 
St.  "4.  "  Tlio  tentli  condition  atlactied  to 
Ihi;  policy,"  said  stroiijj,  .).,  "in  which  it  is 
clt;(;liired  that  the  ))olicy  sh.'iU  not  he  con- 
>tiued  to  extend  to  mills  and  iiianufactoriCR 
of  any  kiii'l,  has  reicrpiicc  to  the  character 
')(  the  real  estate  rather  than  to  the  uses 
t()Whi(;U  it  maybe  put.  1'he  Ixiildiiijr  must 
lUulf  be  a  mill  or  a  manufaelory,  or  it  does 
mil  come  within  ttie  tenth  article.  The  fact 
thai  articles  are  made  or  manufactured  in 
it  (Iwellinp-houKO  or  a  store  (foes  not,  of 
course,  make  it  a  '  manufactory,' within  the 
muMiiiiig  of  this  )iolicy.  Had  clothes  licen 
iiK'ili'  ill  the  store,  and  had  a  sewing'  inaehlnc 
li'i'M  iiilrodiiccd  and  worked  tliere,  a  jury 
uoiiUl  hardly  fliid  that  it  had  bP<!oine  aman- 
iifiiciory,  and,  therefore,  no  loiifjor  insured. 
Is  not  a  manufactory  or  a  factory  a  building, 
the  main  or  principal  design  or  use  of  which 
is  lo  be  a  place  for  producing  articles  as 
[iroducts  of  labor?  There  is  no  ili(tl(;nlly  in 
uiiderstanding  what  is  meant  when  we  speak 
<i(  a  factfM'y  or  manufactory.    It  is  something 


more  than  a  pla  •(•  where  things  arc  i.i.'ide. 
You  woiiM  p.iibably  trirdly  speak  of  ;i  pho 
tograph  estalilishiiieiil  a.H  a  inamifaetory,  or 
a  painter's  studio,  or  a  book  binder'i  simp, 
or  a  priming  ollice.  It  i.s  liiidoutitedly  true 
that  a  building  may  be  insured  as  a  sUu'e  or 
a  dwelHiig  house  which  may  afterwards  in: 
converted  into  a  factory.  If  it  be  und(;r 
such  a  policy  as  these,  it  ceases  to  lie 
insured.  Itut  it  by  no  means  follows  that 
the  partial  use  of  it  for  making  articles  for 
use  or  salt;  make  it  a  manufactory.  'I'lie 
colloeatiiiM  of  the  words  in  llil,s  conditmii  i> 
of  c(insid(;rabk;  weight  in  defermliiing  uhai 
the  piirlies  nieanl.  Not  <»nly  are  IIk;  kinds 
of  maiiiifa(;ltiring  business  exee|ited  froir 
the  pidicy  named,  but  the  real  estate  ex 
copied  is  called  'mills  or  mannf  ic.iories.' 
This  would  seem  to  indicate  what  was,  ii, 
the  minds  of  the  p:irties,  mills  and  niaiiii' 
factoric-i;  soinelliiiig  known,  recogmzcil, 
called  a  mill:  not  merely  a  place  where 
something  might  be  ground,  but  what  coin 
mon  usage  recognizes  as  a  mill;  a  nianiifaC' 
tory:  not  nieridy  a  place  where;  sometliiiig 
may  be  inaile  by  hand  or  niacliiiii>ry,  liu: 
svhat,  in  (;oiiiinon  understanding,  is  known 
as  a  factorv." 


ml 

■f.-r 


408 


THEIR    ADMISSIHII.ITV    TO    EXI'F.AIN    CONTISAfTS 


]iills  of  Ladiiii;. 


I-^  1 


M 


!l 


in  the  policy  as  "standing  detached,"  and  did,  in  fact,  stand  about  seven  foot 
from  any  other  building,  evidence  that  the  words  "stiindinfj;  delached"  mcaiii 
that  the  subject  of  insurance  should  be  at  least  twontj-llve  feet  from  iinoth.i 
building,  was  held  inadmissible.  The  phrase  was  considered  not  iu  tlic  lia^t 
ambiguous,  and  extrinsic  proof  could  not  be  allowed  to  give  it  a  meauiug  diffrr- 
ent  from  its  plain  import.' 

§  204.  To  ez;ilaln  Bills  of  Ladingr.  —  A  bill  of  lading,  like  other  receipts,  i- 
open  to  explanation,  and  the  carrier  may  show  that  the  actual  amount  which 
came  into  liis  liands  is  different  from  that  stated;^  and  a  custom  which  precludes 
the  carrier,  as  between  himself  and  an  intermediate  consignee,  froui  explaiuint; 
the  bill  of  lading,  and  showing  any  error  that  may  have  occurred  in  stating  the 
((uantity,  is  bad.'  Consequently  it  has  been  held  proper  to  prove  that,  uccor(li:i.i 
to  the  usage  of  the  transportation  business,  tiie  words  "quantity  guiirautocd," 
in  a  bill  of  lading  for  grain,  meant  that  the  bill  of  lading  was  conclusive  evidcni  •■ 
of  the  amount  of  grain  to  be  delivered,  and  that  if  it  fell  short  tli'j  carrier  was  to 
pay  for  the  shortage.*  Where  a  bill  of  lading  recited  that  certain  cotton  was 
shipped  on  a  specified  steamboat,  it  was  ruled  admissible  to  show  that  hy  tin 
custom  of  the  river,  when  the  river  was  low,  barges  were  curried  iu  tow,  and 
freight  stored,  at  the  option  of  the  carrier,  on  either  the  boat  or  the  bailee. 
And  where  a  railroad  company  received  goods  addressed  to  a  point  beyond  its 
terminus,  and  gave  a  bill  of  lading  for  the  transportation  of  the  goods  to  its 
terminus,  it  was  held  that  parol  evidence  was  admissible  to  pi'ove  that  there 
was  a  custom  in  such  cases  to  deliver  to  a  connecting  carrier,  such  evidem'.e 
not  tending  to  vary  or  contradict  the  bill  of  lading.* 

So,  evidence  of  usage  is  admissible  to  explain  a  bill  of  lading,  as  to  the  tin!- 
in  which  loading  is  to  be  done  or  delivery  is  to  be  made  —  as,  for  instance, 
whether  the  "  days"  in  which  the  delivery  is  to  be  concluded  are  to  be  ecmsid 
ered  as  working  or  runidng  days,'  or  whether  the  "  rainy  days,"  whicii  are  to  Ix 
excepted,  apply  to  all  days  on  which  there  is  some  rain,  or  only  to  those  diiy- 
when  the  rain  is  sufficient  to  prevent  the  loading  or  unloading  of  tlie  vessel  win, 
safety  and  convenience."  The  meaning  of  "Derby  Line" '•'and  "their  fnljht,"' 
as  used  in  these  instruments,  has  been  arrived  at  by  evidence  of  usaiie;  anil 
"privilege  of  reshippiug"  has  also  been  explained  in  the  same  way."  In  m 
English  case,'''  a  majority  of  the  Court  of  Exchequer  held  that  the  terms,  in  a 
letter  to  carriers  of  goods  from  their  customers,  "  Please  send  the  marbles  not 
insured,^^  were  to  be  read,  "according  to  the  understanding  of  the  lairj,iiaut 


I  Hill  V.  llibem-nn  Ins.  Co.,  10  llun,  26. 

-  Wolfo  V.  Myors,  ;j  Siuiilf.  7;  Ward  v. 
Whitney,  i  Handf.  liO!);  151ancli;ira  ,-.  I'age, 
8  Gray,  287;  Kuckus  v.  The  .Marengo,  6 
McLc.in,487;  Dickorson  r.  Scolyc,  12  Harb. 
i)9;  IJowinaii  v.  Amoric.rtn  Kxpross  Co.,  21 
Wis.  152;  Luw'son  on  (Jar.,  §  llti. 

■'  Strong  V.  Grand  Trunk  K.  Co.,  15  Mich. 
im. 

'  Bisscl  V.  Campbell,  .M  V.  V.  TO!. 

■  McCUire  V.  Cox,  :!2  Ala.  (517. 

«  lloopor  y.  Chicago,  cte.,  K.  (^c,  27  Wia. 
81. 


'  Iliggins  V.  United  Stales  Mail  sii.aiii.-.liip 
Co.,  3  IJlatehf.  282;  Cochran  r.  liellnT;";,  3 
Ks]).  121.  Sou  Comuicrcial  Steanislii|)  (  (■  v. 
Boulton.L.  R.  10  Q.  15.  :i4t;. 

8  TSalfour  V.  Wilkins, '.)  Cent.  I,.  J.  .W. 

"Connecticut,  etc..  It.  (.').  v.  ISaxtcr,  '.-' 
Vt.  8a-). 

10  Nuyus  V.  Canii>bell,  2!)  Vt.  7!». 

11  HroadwcM  r.  liuller,  G  McLean,  2',k;. 

1-  reel;  r.  North  .Slatt'ord.shire,  etc.,  li.  Uo.> 
10  II.  L.  Cas.  473. 


;  seven  feet, 
lied"  meant, 
roin  anotli.  I- 
ill  the  lcu>r 
luingr  (liffi  r 


receipts,  i- 
luunt  wliich 
:h  precliides 
1  explaiiiiim 

sliiliiii;  the 
t,  accordi!!.; 
uaranteed," 
ivc  evideii'" 
rrier  was  t.i 

cotton  was 

that  by  the 
in   tow,  and 

the  bailee.' 
.  beyond  its 
[joods  to  its 
!  tliat  tiicre 
ch  cvidciMx- 

to  llie  tiirp' 

)r  instance, 

)  be  consid- 

ire  to  1)1 

those  (hiy^ 

cSNci  will, 

frci-ht,"  I 
sa',ic :  and 
!iy."  In  u! 
terms,  in  n 
n;ifl)los  not 
ic  1;ihl:ii:i;;( 

sl(':iiii.>liip 
lii'llicrs;,  3 
iiislii|>  Co   V. 

,.  J.  5li. 

'.  Itaxter,    ;■-' 


■nil,  Jih;. 
etc.,  It.  Co., 


KXI'LAININU    MAUITIME    COM'KACl'.s. 


lU'J 


Charter-Furtles. 


between  carriers  and  their  customers,"  and  in  tliat  liglit  tliey  were  interpreted 
to  convey  a  request  to  carry  the  marbles  at  tlie  owner's  risk.  Tliis  decision, 
whicli  was  upon  tlie  construction  of  the  seventli  section  of  tlie  Railway  and  Canal 
Traffic  Act,'  was,  liowever,  reversed  in  the  House  of  Lords.  Where  a  railroad 
company  pivcs  a  receipt  for  freight,  "  to  be  delivered  to  R.  R.  a^cnt  "  at  tlic  ter- 
minus of  the  road,  and  the  agent  deposits  it  at  that  place  in  a  warehouse  not 
belonging  to  the  company,  evidence  of  its  custom  to  deposit  freight  in  that  ware- 
house is  admissible.'^  And  though  a  bill  of  lading  of  cotton,  to  be  carried  by 
river,  states  the  price  at  which  it  Is  to  be  transpoitcci,  the  carriitr  is  not  pre- 
cluded from  showing  the  existence  of  a  custom  on  the  river  to  charge  lighter- 
age, in  addition  to  the  freiglit,  whenever  the  tide  is  so  low  throughout  the 
season  as  to  prevent  cotton-boats  from  passing  shoals.' 

§205.  To  explain  Charter-PartleB  and  other  Maritime  Contracts.  —  I'^vi- 
dence  of  usage  has  been  frequently  resorted  to  to  exphiin  charter-parties  and 
maritime  contracts  of  like  character*  —  as,  for  instance,  the  terms  "freigtd," 
"freight  measurement,"^  and  *'  loading  in  turn,"*  as  used  in  such  instruments, 
have  been  construed  thereby.  In  Birch  v.  Dp  Peyster,'  hu  action  of  assumiisil 
was  brought  by  the  owners  of  a  ship  against  the  captain  for  tlic  amount  of 
fix'ight  received  by  him.  By  the  contract  between  the  parties,  the  defendant 
was  to  receive  a  stipulated  sum  in  lieu  of  "  privilege  "  and  «« primage."  The 
freight  claimed  had  been  earned  in  respect  of  goods  carried  in  the  cabin,  and 
the  principal  question  was  whether  the  terms  of  the  contract  excluded  all  right 
on  the  part  of  the  captiiin  to  use  the  cabin  for  the  carriage  of  goods  on  his  own 
account.  On  the  trial,  the  defendant  proposed  to  give  in  evidence  a  conver- 
sation between  the  parties  before  the  agreement  was  entered  into,  in  the  course 
of  which  it  had  been  expressly  stated  by  the  plaintiff  that  the  defendant  was  to 
have  the  use  of  the  cabin  entirely  to  himself;  but  the  plaintiffs  contended  that 
no  evidence  was  admissible  by  way  of  explanation,  except  as  to  tin;  general 
meaning  of  the  term  "privilege,"  in  mercantile  understanding.  Ginns,  C.  .1., 
admitted  the  evidence,  saying:  "The  distinction  which  you  take  is,  that  evi- 
dence may  be  received  to  show  what  the  mercantile  part  of  the  nation  mean  by 
the  term  '  privilege,'  just  as  you  would  look  into  a  dictionary  in  order  to 
ascertain  the  meaning  of  a  word,  and  that  it  must  then  be  taken  to  have  licen 
used  by  the  parties  in  its  mercantile  and  established  sense.  But  I  think  that  tlie 
word  '  privilege '  is  of  so  indeterminate  a  signillcation  that  I  must  receive  this 
evidence.  It  is  certainly  evidence,  and,  in  the  way  in  which  it  is  offered,  falls 
within  the  general  current  of  mercantile  understanding,  since  they  had,  previous 
to  the  agreement,  a  conversation  on  the  subject  of  '  privilege.'  To  this  extent  it 
is  evidence,  if  not  fnrtlier;  and  if  the  term  has  been  used  in  different  trades  in 


'  17  &  18  Vict.,  c.  31. 

«  Alaliama,  etc.K.  Co.  r.  Kidd,29  Ala.ZJl; 
(.  c.  ;i5  AIn.  20t). 

'  Andrews  v.  Roach.  I!  Ala.  .TOO. 

*  Hiilicrlson  i\  Wait,  8  Kxch.  21)9;  Phillips 
V.  Ilrlaid,  1  lluvl.  &  N.  'i\ ;  Holtoinley  v. 
Forbes,  5  lUiiK.  N.  C.  I  ■  (Mdon  v.  I'ai-.nis, 
2:1  How.  107;  Norden  stei'  nslnii  (;o.  r.  Uenii)- 
<ey,  L.  U.  1  C.  1*.  Uiv.  054;  Philadelphia,  etc., 


R.  Co.  V.  Northam,  2  Ben.  1;  Barker  v.  ISor- 
zone,  48  Md.  474. 

6  Peisch  V.  I)i<'.kson,  I  Mason,  11;  Uiblion 
V.  Young,  2  J.  1!.  >r(in   J.M. 

«  Robertson  »•.  Jackson, 20  B.  413;  Schultz 
V.  Liedenian,  M  C.  U.  :tS;  Hudson  v.  Ciuniunt- 
son,  lb  V.  M.  '.M.t. 

7  1  Stark.  N.  P.  210. 


410 


THEIK    ADMISSIBILITY    TO    KXPLAIN    CONTUAtTS. 


Charter-Partics. 


I'  I 


,1, 


s  i 


different  ways,  the  conversation  is  evidence  to  sliow  in  wliat  sense  it  was  used 
on  the  present  occasion." 

In  tlie  case  of  Browne  v.  Bijrne,^  which  was  an  action  for  freitiht  by  a  sliiji- 
owncr  ajjainst  the  indorsee  of  a  bill  cf  lading,  to  whom  jjoods  luid  been  deliviicd 
at  Liverpool,  and  who  had  accepted  them,  the  bill  of  hiding  makinn  tlu-iii 
deliverable,  '*  he  paying  freight  for  them  live-eighths  of  a  penny  sterling  per 
pound,  with  £5  per  cent  primage  and  average  acenstoined,"  it  was  lield  tliat 
evidence  was  admissible  that  by  the  custom  of  Liverpool  the  sliip-own('r  was 
entitled  to  a  deduction  of  three  months'  discount  from  the  freiglit,  tlioiigh  such 
custom  applied  only  to  goods  coming  from  ports  in  tlie  Soiitiiern  Slates  of 
America.  "Here,"  said  Golkkidgk,  J.,  "the  contract  is  to  pay  freiglit  on 
delivery,  at  a  certain  rate  per  pound.  Is  it  inconsistent  with  this  to  allege  that 
by  tTie  custom  the  ship-owner,  on  payment,  is  bound  to  allow  three  months'  dis- 
count ?  We  think  not.  The  written  contract  expressly  settles  the  rate  of  payment. 
The  custom  does  not  set  this  aside;  indeed,  it  adopts  it  as  that  upon  which  it  is 
to  act,  by  establishing  a  claim  for  allowance  of  discount  upon  freiglit  to  he.  jKiid 
after  that  rate.  The  consignee  undertakes  to  pay  freight  on  delivery  after  ihat 
rate;  the  ship-owner  undertakes  to  allow  three  months'  discount  on  freight  paid 
after  that  rate.  The  latter  contract  is  dependent  on  tlie  former,  but  is  not  r  pug- 
nant  to  it.  If  the  bill  of  lading  had  expressed  —  or  if,  from  the  langiii;:c  of  ii, 
the  intention  of  the  parties  could  have  been  collected—  that  the  freight,  at  the 
specitied  rates,  should  be  paid  free  from  all  deductions,  ciistoniary  or  otherwise, 
then  it  would  have  been  repugnant  to  it  to  set  up  the  custom,  and  the  case  would 
have  been  brought  within  the  restriction  mentioned  above.  *  *  *  jint  the 
contract  settles  the  rale  of  freiglit;  whother  or  not  discount  is  to  be  allowed  on 
the  payment,  it  leaves  open,  and  to  that  the  custom  applies."  So,  where,  by  a 
bill  of  lading  of  wool  from  Odessa,  freight  was  to  be  paid  in  London,  on  delivery, 
at  the  rate  of  "80s  per  <:wt.,  gross  weight,  tallow  and  other  goods,  and  grain  or 
seed  in  proportion,  us  per  London-Baltic  printed  rates,"  it  was  held  that  extrinsic 
evidence  was  adinissii)le  to  show  that  by  the  usage  of  the  trade  the  meaning  of 
the  bill  of  lading  was,  that  80s  per  hundred-weight  of  tallow  was  to  be  taken  as 
the  standard  by  which  the  rate  of  freight  on  all  other  goods  was  to  be  measured,' 
'.n  another  case,  the  facts  were  that  by  charter-party  the  defendant  agreed  to 
load  on  board  a  vessel  at  Trinidad  "a  full  and  complete  cargo  of  sugar, 
molasses,  '"'I*  oth(!r  produce."  It  appeared  that  it  was  the  custom  at  Trinidad 
to  load  sugar  in  hogsheads  and  molasses  in  puncheons,  in  which  mode  they 
were  carried  more  conveniently,  and  with  less  loss  to  ttie  merchant,  an  1  that  a 
full  and  complete  cargo  of  sugar  and  molasses  meant  a  cargo  so  packed.  It  was 
lield,  both  in  the  Court  of  Exchequer  and  Exchequer  Chanibor,  that  the  custom 
was  admissible  in  evidence,  for  it  was  applicable  to  sueli  a  charter-party,  and 
did  not  control,  but  only  explained  the  contract,  which  should  be  construed  witli 
reference  to  the  usage  at  the  port  of  lading.'  In  the  Court  of  l'iXclie(|ner,  Ai.okk- 
8()N,  B.,  .said:  "It  is  not  admissible  if  it  contradicts  the  charter-party  ilsiil. 
Tlie  charter-party  is  tl'.e  contract,  and  the  only  contract,  between  tlie  parties.    No 


It  V' 


'  3Kl.*ni,703,  IS.Iur.  700.  See  Iho  com- 
ments oil  (hl8  ciisc  ill  Cutlibert  v.  Ciimnilng, 
10  Exch.  mi 


2  Uiisftian  Steam  Nav.  Co.  v.  .siha,  1.'!  C.  r>. 
(N.  s.)  (ilO. 

3  Culhbei-t  V.  Cumminj?,  10  Kxch.  soil,  H 
Exch.  iK). 


EXl'LAIi\'IN(l    MAKITIMK    ("ONTRACTii. 


411 


Chart»;r-Piirtics. 


t  was  used 


evidence  can  be  s'lven  to  contradict  or  alter  its  effect ;  but  then  its  effect  must  be 
clear,  from  the  wt^rdin*;  of  the  document  itself.  There  is  a  perfect  right  to 
explain  the  contract  and  show  what  it  really  means,  according  to  the  words 
used  by  the  parties.  It  may  be  shown  that  ♦  a  full  and  complete  cargo  of  sugar 
and  molasses  '  means,  in  truth,  a  full  and  complete  cargo  of  sugar  and  molasses 
packed  in  the  ordinary  way  in  which  sugar  and  molasses  are  packed  to  be  car- 
ried. Tliat  was,  in  fact,  the  evidence  received.  It  was  not  evidence  to  alter  or 
control  the  contract,  but  to  show  what  the  contract  really  was."  By  a  charter- 
party  it  was  agreed  between  the  plaintiff,  a  ship-  .wner,  and  the  defendants, 
merchants  at  Mancliester,  that  the  plaintiff's  ship  should  sail  to  Bombay  and 
there  load  a  cargo  of  cotton,  and  proceed  with  it  to  Liverpool,  and  "deliver  the 
same,  on  being  paid  freight  at  the  rate  of  75s  per  ton  of  (ifty  cubic  feet  delivered, 
tlie  freight  to  be  paid  on  right  delivery  of  the  cargo."  The  ship  sailed  to  Bom- 
bay and  received  a  cargo  of  cotton,  which,  previous  to  being  loaded,  had  been 
subjected,  in  accordance  with  the  usual  practice,  to  a  high  hydraulic  pressure,  so 
as  to  reduce  its  compass.  On  being  landed  at  Livcri)ool  the  cotton  expanded, 
and  the  plaintiff  claimed  freight  on  its  measurement  when  delivered,  and  not 
when  shipped.  In  the  Court  of  Kxchequer  it  was  held  tliat  evidence  that  it  was 
tlie  custom  of  the  Bombay  trade  to  pay  freight  for  cotton  goods,  under  charter- 
parties  simihirly  worded,  on  the  measurement  of  the  goods  at  the  port  of  ship- 
ment, was  admissible  to  explain  the  contract.'  Where  it  was  stipulated  in  a 
charter-party  that  the  ship  should  be  unloaded,  weather  permitting,  at  a  certain 
rate  per  diem,  to  reckon  from  the  time  of  the  vessel  being  ready  to  unload,  and 
*'  in  turn  to  deliver,"  it  was  held  that  the  charterers  had  a  right  to  prove  that 
the  contract  was  entered  into  with  reference  to  a  kno^vn  and  recognized  use  of 
the  words,  *'  in  turn  to  deliver,"  among  persons  conversant  in  the  trade.'  So,  Iq 
an  action  upon  a  charter-party  for  freight  upon  goods  shipped  a.^  ^<ombay  for 
London,  stating  that  cotton  was  to  be  "  calculated  at  five  cubic  feet  per  ton,"  a 
usage  was  held  admissible  to  prove  that  the  measurement  was  to  be  calculated 
when  the  cotton  was  taken  from  a  screw  at  Bombay,  though  it  appeared  that  it 
afterwards  expanded  considerably  before  it  was  put  on  board,  and  that  it  would 
have  given  a  third  measurement  after  it  had  been  unloaded.* 


1  Buckle  V.  Knoop,  L.  K.  2  Kxch.  125. 

2  Kobcitsoii  r.  .lacksiiii.'iO.  n.  412;  Liede- 
inan  V.  Schultz,  14  C.  li.'M. 


■'•  Ilor.toinley  v.  Forbes, 6  Scott,  816   5  Bing. 
N.  O.  121. 


: 


chaptp:3r   v. 

ON  THEIR    INADMISSIBILITY    WIIKN    IN    CONFLICT   WITH 
CONTRACTS,  STATUTES,  OR    LAWS. 


mi 


IlXVSTKATIVB   CASKS :  — 

29.  Blackett  v.  Soyal  E:cclian(je  Assurance  Company.  —  Usa<?c.s  con- 

tradicting terms  of  written  contracts  inadniissible. 

30.  Brown  v.  Foster.  —  Usages  in  conflict  witli  express  agreements 

inadmissible. 

31.  Noble  V.  Durell.  — Onstoms  contrary  to  statutes  bad. 

32.  Barnard  v.  Kellogg.  —  Usages  in  conflict  with  rules  of  law  inad- 

missible. 

33.  Raisin  v.  Clark.  —  Usages  in  conflict  with  rules  of  public  policy 

illegal. 


Notes : 


§  20(;, 

207. 
208. 
209. 
210. 
211. 
212. 
213. 
214. 
215. 
216. 
217. 
218. 
219. 
220. 
221. 
222. 
223. 
224. 
225. 

22C. 
227. 

228. 
229, 
2:50. 

2:u. 

232. 


Usages  inadmissible  when  repugnant  to  express  contracts. 

Usages  repugnant  to  express  contracts  —  Carrier  and  cusioiucr. 

Same  —  Insurance  policies. 

Same  —  Landlord  and  tenant. 

Same  —  Contracts  of  luring. 

Same  —  Contracts  for  work  and  labor. 

Same  —  Principal  and  agent. 

Same  —  Banliers  and  brokers  —  Bills  and  notes. 

Same  —  Vendor  and  purcliaser. 

Same  —  Miscellaneous. 

The  effect  of  statutes  on  usages  and  customs. 

Words  detined  by  act  of  Parlianient  —  Contrary  usages  void. 

Statutes  as  to  olFicers'  duties  —  Inconsistent  usages. 

Statutes  prohibiting  usury  —  Contrary  usages. 

Statutes  as  to  shipping-articles  and  carriers  —  Customs. 

Miscellaneous  statutes  and  repugnant  usages. 

Statutory  exemptions  canuDt,  be  waived  by  usage. 

Statutes  may  be  construed  by  usage. 

Municipal  charters  and  powers  as  affected  by  u'<ago. 

Customs  and  usages  not  inadmissible  because  in  conflict   wiHi 

common-law  rules. 
Contradictory  expft'essions  of  some  courts  on  this  >ul)jecl. 
Same  —  Conflicting  decisions. 

Banks  and  banking  — Usages  against  legal  rules  admitted. 
Same  —  Usages  against  legal  rules  rejected. 
Common  carriers  —  Usages  in  conflict  with  rules  of  law  admitted. 
Same  —  Usages  in  conflict  with  rules  of  law  rejected. 
Corporations  —  Usages  agaiust  common-law  rules  admitted. 


(412) 


USAGES    AGAINST    WKllTEN    CONTUACTh. 


413 


Illustrative  Cases. 


Notes  : 


§  233.  Insurance  —  Usaaies  in  conHiot  with  legal  rules  admitted. 

234.  Same  —  Usafjes  in  conflict  with  legal  rules  rejected. 

235.  Landlord  and  tenant  —  Customs  against  law  admitted. 

2.U!.  Contracts  for  personal  services  —  Customs  against  law  admitted. 

237.  Same  —  Customs  against  law  rejected. 

238.  Partnership  —  Usages  against  legal  rules  admitted. 

23J>.  Principal  and  agent  —  Usages  in  conflict  with  rules  of  law  admit- 
ted. 

240.  Same  —  Usages  in  conflict  with  rules  of  law  rejected. 

241.  Vendor  and  purchaser  —  Usages  against  legal  rules  admitted. 

242.  Same  —  Usages  against  legal  rules  rejected. 

243.  Miscellaneous  —  Usages  contradicting  rules  of  law  admitted. 

244.  Same  —  Usages  contradicting  rules  of  law  rejected. 

245.  The  necessity  for  reviewing  the  contradictory  cases. 
24G.  The  facts  and  opinions  of  the  judges  in  the  above  cases. 

247.  Same  —  The  above  cases  examined. 

248.  The  meaning  of  the  rule  that  a  u-,age  must  not  conflict  with  the 

law. 


29.   USAGES   COXTU.VDICTING  TIHIMS    OF  WRITTEN   CONTRACTS    IN- 
ADMISSIBLE. 

BlACKKTT    V.  RoVAL    Exf^HANdE    ASSURANCE    (V)MPANY.* 

In  the  Eitffh'sh  Court  of  Exrhequer,  HUarif  Term,  1832. 

Hon.  J<)H\  SiNdMCTON,  Baron  Lynuiiukst,  Lord  Chief  Baron. 
Sir  John  Baymcy,  Kt., 


"  Wii.i.iAM  Gaukow,  Kt., 

'«  John  Vaughan,  Kt., 

"  William  Boi.i.vno,  Kt., 

"  .lOHX  GuitNKY,  Kt., 


r><  irons. 


In  :in  action  on  a  policy  of  insiivanco  on  a  ship,  her  tackle,  apparel,  boat,  and  other  fami- 
turc,  evidence  of  a  usane  tlial  bouts  slung  on  the  outside  of  the  .-hip,  on  the  quarter,  are 
not  protected  is  iuudinissible,  as  coiurailu-.tin^  the  express  t(;nns  of  the  contract. 

CovKNANT  on  a  policy  of  assurance  at  and  from  London  to  Calcutta 
on  the  ship  Thames,  her  tackle,  apparel,  ordnance,  munition,  boat,  and 
other  furniture,  in  the  usual  form,  with  the  memorandum,  "  Free  from 
average,  under  £.'5  per  cent,  unless  general." 

At  the  trial  before  Vauoiian.  B.,  at  the  London  .Sittings,  the  plain- 
tiffs luiving  proved  the  loss  of  a  boat,  vvhicli,  with  other  damage  subse- 
queutly  incurred  by  stress  of  weatlior,  amounted  to  more  than  £8  pec 


•  Reported  2  Crouip.  4  .J.  Hi  ;  i  Tyrw.  W6. 


[ 


ll 


I 


i 


i 

I 
I 


f  I 

5 ' 


ti 


414 


WHKN    IN    CONFLICT   WITH    CONTKACT^*,  EIC. 


Blackett  v.  Royal  Excliangc  Assurance  Company. 

(icnt,  the  defendants  offered  evidence  of  a  usage  that  boats  shmg  upon 
the  outside  of  the  ship,  on  the  quarter,  were  not  protected  by  the  policy. 
It  had  been  proved  on  the  part  of  the  plaintiffs  that  such  slingiiiir  wm^. 
proper  and  necessary  in  voyiigos  of  the  description  insured  against. 
The  learned  baron  wsus  of  opinion  that  such  evidence  of  usage  was  inad- 
missible, and  he  accordingly  rejected  it. 

In  Michaelmas  Terra,  tlie  Attorney- General  obtained  a  rule  accord- 
ingly, citing  Pelly  v.  Jio;/al  Exchange  Assurance  Compani^.^ 

Sprinkle,  Serjt.,  SLiid  Maule  showed  cause.  —  The  evidence  of  usatrc 
was  properly  rejected.  The  words  "  boat,"  etc.,  are  express,  unc(iiii vo- 
cal words,  and  evidence  of  usage  was  clearly  inadmissible  to  contradict 
their  import.**  If  parol  evidence  had  been  received  in  this  cas(^  it 
would  have  been  received  to  v.ary  an  express,  unaml)iguous.  wrilUii 
contract.  It  was  proved  at  the  trial  that  the  boat  was  properly  sliini: 
and  that  it  would  have  been  improper  if  it  had  not  been  s(j  sIiimu. 
Indeed,  even  if  it  had  been  improperly  stowed  negligcuc(!  in  lliat 
respect  on  the  part  of  the  master  would  have  furn  jlied  no  dcfcnci;.  It 
would  be  extremely  dang*  roiis  to  admit,  on  such  a  question,  evidence  of 
a  usage  at  Lloyd's,  which  only  amounts  to  a  usage  not  to  pay,  a  specicis 
of  prescription  de  non  solvendo. 

The  AUorne>/-Oeneral,  Campbdl,  and  Follett,  contra.  —  Usage  may  lie 
resorted  to  for  the  purpose  of  getting  at  the  meaning  of  words  o1'  tiii>< 
description.  The  evidence  was  offered  to  show  that  the  general  usage 
of  trade,  and  particularly  at  Lloyd's,  was  that  the  underwriters  did  not 
pay  on  the  loss  of  boats  slung  over  the  quarters.  Such  an  universal 
usage  showed  the  understanding  of  the  parties,  and  what  they  had  in 
their  contemplation.  Mercantile  contracts  are  always  to  be  constiiuid 
according  to  the  meaning  in  which  they  are  understood  by  mei-cantile 
men.  Evidence  of  usage  has  been  admitted  to  prove  that  goods  stowed 
on  deck  were  not  within  a  general  policy  on  goods  '■•.•,  in  Gobay  v 
Lhyd,^  evidence  of  a  usage  was  admissible  to  exp'  -  <  '■■■  -.inibiguoiis 
meaning  of  the  word  "■  mortality,"  a  warranty  agaii  it  iicli  had  been 
held,  in  Lawrence  v.  Aberdein,"*  not  to  extend  to  a  o:  v/bere  animals 
died  in  consequence  of  the  agitation  of  a  ship  in  a  storm.  It  is  true 
that  in  Gnbay  v.  IJoyd  the  evidence  of  usage  was  unsuccessfully  offered, 
but  it  was  admitted  for  the  purpose  of  showing  (if  it  had  been  strong 
enough  to  do  so)  that  the  manner  in  which  the  animals  perished  was 


>  1  Burr.  341. 

'  Parkinson  v.  Collier,  Park  on  Ins.  416; 
1  Ph.  on  Kv.  (6th  ed.)  639. 


3  5  Barn.  A  Cress.  797 ;  r»  Dears.  A  B.  (.'.  C. 


641. 


*  6  Barn.  A  Adol.  107. 


i)!SA(ii;.s  .\(i.\i.\sT  wurnKN  contkacts. 


4ir> 


llinsiniiivc  riis«;s. 


not  sm;li  a  loss  iis  tlu;  policy  contemithitod,  and  that  tho  underwriters 
did  not  ))ay  sucli  losses. 

In  the  liist  of  the  eu-cs  on  tlie  sul>J('(;t  of  goods  stowed  on  deck,  the 
question  was  not  as  to  tiie  propricity  of  their  biing  stowed  there,  bul 
whether,  In'ing  so  slowed,  they  were  protected  by  tlie  policy,  in  which 
liiey  were  not  speeiUeally  named.  P>iden(re  of  iisa^e  was  admitted  to 
siiow  that  the  underwrilers  must  have  been  aware  of  the  practice  of 
stowing  goods  of  tin-  description  in  question  on  deck,  and  the  proof 
that  they  weri'  usually  stowed  on  deck  was  considered  ;us  tantuinoiint  to 
proof  that  the  underwiilers  \v(!re  aware  of  it.  In  Palmer  v.  lilmJcburn,^ 
evidence  of  the  usage  of  settling  the  loss  on  a  policy  on  freight  was 
admitted, 

Ijord  LYNoiirnsT,  C,  IJ..  now  delivered  the  judgment  "f  the  court. 

There  were  two  questions  in  this  case:  one,  whether  juroi  evidence  of 
a  usage  was  admissible  to  show  that  for  boats  OJi  the  outside  of  tiie 
shi}),  slung  upon  the  quarter,  underwrit(!rs  never  paid;  the  other,  upon 
the  construction  of  the  clause,  "  Free  from  average,  unde;  £.';>  per  cent." 
whether  the  undiM'writer  is  answerable  for  every  instance  of  damage. 
Iiowever  small,  if  the  aggregate  in  toto  amount  to  £3  per  cent,  or 
whether  each  instance  where  the  damage  it  occasions  can  ))e  ascertained, 
and  is  under  £.')  per  cent,  is  to  be  excluded ;  and  we  are  against  the 
defendants  upon  both.  The  policy  is  in  the  usual  form  as  to  ship  and 
goods,  and,  as  far  as  regards  the  ship,  imports  to  be  upon  the  ship 
(that  is,  the  body),  tackle,  apparel,  ordnance,  munition,  boat,  and 
otiier  furniture  of  the  ship  called  the  Thames.  There  is  no  exception; 
and  the  policy  is,  therefore,  upon  the  face  of  It,  upon  the  whole  ship,  on 
all  her  furniture,  and  on  all  her  apparel.  It  was  in  evidence  in  the 
cause,  and  admitted  upon  the  argument,  that  upon  such  voyiige  as  that 
insured,  ships  invariably  carry  a  boat  in  the  place  in  which  this  boat 
was  carried,  and  slung  as  this  boat  was  slung;  and  tiiat  the  ship  would 
not  be  properly  furnished  or  equipped  uidess  it  had  a  boat  iu  that  place, 
and  so  slung.  The  objection,  then,  to  the  parol  evidence  is,  that  it  mis 
not  to  explain  any  aml)iguous  words  in  the  policy,  —  any  words  which 
might  admit  of  doubt,  —  nor  to  introduce  matter  upon  which  the  poli(!y 
was  silent,  but  was  at  direct  variance  with  the  words  of  the  policy,  and 
in  plain  opposition  to  the  language  it  used;  that,  whereas  the  policy 
un|)orted  to  be  upon  the  ship,  furniture,  and  apparel  generally,  Uic 
usage  is  to  say  that  it  is  not  upon  all  the  fuiuiture  and  appsuel,  but 


'.■i  i 


I  Bins.  61. 


41*; 


WIIKN    IN    CONFI.ICT    WITii   CONTKACT^j,   Ki'. 


Blackott  r.  Koyal  Kxcliaii;jc  Assurance  ('(»ni|>,iii\ . 


i. 


1 

U  t 


upon  part  only,  excluding  the  boat.     Usage  may  l>o  udinissible  to  ox|)l:iiii 
wliat  is  doubtful ;  it  is  never  admissible  to  contrudiet  what  is  plain.     The 
cjises  which  are  collected  in  1  Phillips  on  Evidence  ^  and  StarMe  on  Evi- 
dence^ clearly  establish  this  position;  and  a  reference  is  made  to  tin- 
siirae  subject  in  the  second  volume  of  Mr.  Piiit.Mi's'  book.-'    The  author- 
ity referred  to  in  the  argument,  as  to  goods  lashed  upon  the  dock, 
seems  to  be  i)lainly  distinguishable,  and  to  proceed   upon  a  different 
principle.     On  :iu  insurani^e  upon  goods,  the  underwriter  is  entitled,  in 
general,  to  expect  that  they  shall  be  carried  in  llnil  part  of  the  ship 
usually  appropriated  to  the  stowage  of  goods  wliicli  ought  not  to  l)e 
placed  in  the  ordinary  stowage ;  but,  in  a  more  perilous  situation,  he 
ought  to  be  ap|)rised  either  of  the  nature  of  tlie  goods  or  of  the  jiart 
of  the  ship  in  which  they  are  to  be  put.     If  he  is  left  to  suppose  that 
they  are  ordinary  goods,  he  will  naturally  supposes  they  will  be  placed 
where  ordinary  goods  are  phuted,  and  that  they  will  incur  the  hazard 
only  of  ordinary  goods ;    and   if  he  were  to  be  made  answerable  foi 
extraordinary  peril,  he  would  be  answerable  for  a  peril  he  had  not  con- 
templated,  and  for  which  he  had  not  received  an  adequate  compen- 
sation.     This,   as  it  seems  to   us,   is  the  true   principle  upon   which 
evidence  of   usage  is  admitted  as  to  goods  lashed  upon  deck.     They 
are  not  in  the  part  of  the  ship  where  goods  are  usually  carried ;  they 
are  in  more  than  usual  peril;  and  a  usage  that  they  are  not  covered 
by  an  ordinary  policy   upon  goods,   but  that  they  rerpiire  a  distinct 
explanation  to  the  underwriter  of  the  part  of  the  ship  in  which  tlu  y  arc 
to  be  eairied,  or  (where  that  will  imply  the  same  information)  of  the 
nature  of  the  goods,  is  not  at  variance  with  any  part  of  the  policy,  is 
essential  to  that  information  which  the  underwriter  ought  to  receive  to 
enable  him  to  estimate  the  risk  and  calculate  the  premiums,  and  is  a 
portion  of  that  fairness  which  ought  to  be  rigidly  observed  upon  all 
these  contracts.     The  policy  is  upon  goods  generally,   and  the  usage 
explains  what  description  of  goods  is  intended,  viz. :  goods  of  ordinary, 
not  of  extraordinary  danger. 
"We  are  therefore  of  opinion  that  the  evidence  of  usage  was  properly 

rejected. 

Rule  discharged. 


Pages  553-«'i59. 


»  Pa^-.M  10:!3-I(«8. 


•  Pages  3*!,  37. 


m 


III 


U8AUKS    AUAI.NST   EXl'liESS    AOBEEMKNT.s. 


417 


Illustrative  Cases. 


30.   USAGES   IN    CONKLLOT    WITH    EXPRESS    AUIIEEMENTS    INADMIS- 
SIBLE. 

Brown  v.  Foster.* 


Ill  the  Supreme  Judicial  Court  of  Massachnsetfs,  September  Tenn,lS73. 


Hon.  HORACB  Gray,  Chief  Justice. 

••  John  Wells, 

««  Jamks  D.  Colt, 

«'  Seth  Ames, 

•'  Marcus  Morton, 

"  William  C.  Endicott, 

"  Charles  Devens,  Jr., 


.  Associate  Jvstiri'.s. 


A.  ngreed  to  make  B.  a  "  satisfactory  "  suit  of  clothes.  A.  afterwards  ili;liv('red  the  clothes 
to.B.,  but  B.  returned  them  to  A.,  with  a  notice  that  they  did  not  lU,  iiiid  were  unsatis- 
factory. In  a  suit  by  A.  against  H.  for  the  price:  held,  that  evidence  that  a  custom 
existed  among  tailors  of  having  garments  tried  on  after  tliey  were  Unisheci,  and  then 
making  any  alterations  that  uiij^'lit  he  necessary  to  make  them  flt,  was  inadmissible' 
because  it  contradicted  the  terms  of  an  express  cimtiaci. 

Contract  to  recover  the  price  of  a  suit  of  clotiies. 

At  the  trial,  in  the  Central  District  Court  of  Worcester,  the  dcfen'lant 
contended,  and  there  w:is  evidence  tending  to  show,  that  tlie  clothes 
were  to  be  uiade  and  delivered  to  the  defendant  in  North  Brookficld, 
on  or  befoi'c  a  specified  day,  and  that  they  vviae  to  be  made  to  the  satis- 
faction of  the  defendant. 

It  was  agreed  that  the  clothes  were  delivered  on  the  evening  of  the 
day  specified,  which  was  Saturdtiy,  and  that  on  the  fol!  )vving  Monday 
the  defendant  returned  them  to  the  plaintiff  by  the  same  person  who 
delivered  them,  with  written  notice  that  the  clothes  did  not  fit,  were 
unsatisfactory,  and  were  not  aiiuepted. 

The  defendant  offered  evidence  that,  the  clothes  did  not  fit  him,  and 
that  they  were  not  made  in  the  nifinner  and  form  agreed  upon.  While 
the  defendant  was  testifying,  the  plaintiff  produced  tlio  clothes  in  court, 
and  requested  the  defendant  to  try  them  on  in  the  presence  of  the  Jury. 
The  defendant  assented,  and  having  put  them  on,  wore  them  in  the 
presence  of  the  court  and  jury.  The  plaintiff  then  called  sev*  ral  tailors 
as  experts,  who  testified  that  the  clothes  needed  some  alterations  before 
they  could  be  called  a  good  fit,  but  that  such  alterations  coidd  be  easily 
made  without  injury  to  them.     He  also  offered  evidence  that  he  wrote 


I 


•  Keporled  113  Mass.  136. 

a? 


41.S 


uiii:.\   IN   (  oNi'MCT  WITH  (;()Mi;.\(  r.>,  kt* 


I 


[irovvn  V.  Foster. 


a  letter  to  the  defendant  tlie  same  day  the  clc^lhes  were  rctiiiiM  <!.  in 
which  the  foIlowin<5  laiijiu.'ige  was  used:  "  Can't  you  come  and  let  ii- 
see  what  the  trouble  witli  the  fit  of  your  clothes  is?  From  wliat,  yen 
say  about  the  coat,  we  think  we  could  reined}-  that;  and  we  could  ni:ik( 
another  vest  if  necessary,  and  coat  too."  To  this  letter  the  di'f(>ii(l:iat 
replied  that  the  clothes  were  unsatisfactory  to  him  as  they  were,  and  Unit 
he  would  not  accept  them  after  llioy  had  been  worked  over  and  botchiid 
up,  and  refused  to  allow  the  plaintiff  to  make  a  n(!w  suit,  or  to  acccijt 
any  alterations  to  the  suit  already  made. 

There  was  evidence  that  tlie  defendant  came  to  the  ijlaitiliff's  store 
soon  after  the  clothes  were  i-clurned,  and  the  plaintiff  asked  him  in  tr\- 
them  on,  to  sec  what  alterations,  if  any,  were  necessary  to  make  tli(;ii) 
fit ;  this  the  defendant  refused  to  do. 

There  was  also  evidence  to  show  that  a  custom  existed  amon<f  taili.rs 
of  having  garments  tri«'d  on  after  they  were  finished,  and  then  in;ikiii<r 
any  alteralions  which  miirht  be  necessary  to  make  them  fit. 

Tlie  defendant  asked  the  court  to  give  the  following  inslnirtioiis  tc 
the  jury:  — 

•'  1.  If  you  find  that  the  plaintiff  agreed  to  make  tiie  clothes  in  inics- 
tion  to  the  satisfaction  of  the  defendant,  and  faiit'd  so  to  do,  tlicii  ihc 
plaintiff  cannnot  maintain  this  action,  and  you  will  return  a  v^'niicl  fni 
the  defendant. 

"  2.  If  you  find  that  the  plaintiff  agreed  to  deliver  the  clothes  on  or 
before  a  spccilied  time,  made  up  in  the  manner  and  form  airrced  ii[joii, 
and  failed  so  to  do,  then  the  defendant  was  under  no  obligation  to 
accept  them,  and  you  will  return  a  verdict  in  his  favor." 

The  court  refused  to  give  the  instructions  in  the  form  prayed  for.  hut, 
after  giving  instructions  upon  the  other  points  raised,  to  which  noobjcc- 
tioiis  wore  made,  instructed  the  jury  as  follows:  — 

"  The  plaintiff  was  bound  to  make  the  clothes  of  the  materisd  <init'red. 
in  a  workman-like  manner,  and  to  deliver  them  at  the  time  agiccnl  upon 
by  the  parties.  If  the  plaintiff  agreed  to  make  the  clothes  to  the  satisfac- 
tion of  the  defendant,  he  was  bound  to  do  so,  with  these  qualilicatioiis; 
If,  when  the  clothes  were  delivered,  there  were  defects  in  the  fit  of  tlicni. 
such  as  are  liable  to  occur  in  first-class  tailoring  establisliments,  but 
such  as  could  be  easily  remedied,  and  a  custom  ainong  tailors  has  bei'ii 
proved  to  remedy  such  defects  when  they  occur,  the  plaintiff  wm< 
entitled  to  a  reasonable  opportunity  therefor;  and  if  he  was  willing,  and 
offered  to  remedy  said  defects,  and  the  defendant  refused  to  allow  him 
to  do  so,  the  jilaintiff  is  entitled  to  recover,  if  the  other  facts  iu  the 
case  are  proved." 


I 


IJHAUEH    AGAINST    EXI'UEKS    AOKEEHENTM. 


4VJ 


Illustrativt!  Cases. 


ructions  ti; 


The    jury  roturiiod   ii  verdict  for  the  phiintiff,   and    the  dcfeiKhmv 
excepted. 

B.  W.  PoW'r  iiiid  (J.  II.  Bull,  for  the  defendant ;  A.  Thayer,  for  thi- 
plaintiff. 

Devens,  J.  —  'J'lien;  was  evidonce  at  the  trial  to  show  that  tlie  con- 
tract between  the  i)art'es  was  an  express  contract,  and  by  the  terms  of 
it  the  plaintiff  agreed  to  n  ake  and  deliver  to  the  defendant,  upon  a  day 
certain,  a  suit  of  clothes,  which  were  to  be  nia<le  to  the  satisfaction  of 
the  defendant.  The  cl)t!ies  were  made,  and  delivered  upon  the  day 
spc(!ified,  but  were  not  to  the  satisftiction  of  the  defendant,  who  de- 
clined to  accept,  and  jM-dinptly  returned  the  same.  If  the  plaintiff  saw 
fit  to  do  work  upon  articles  for  tlie  defendant,  and  to  furnish  materials 
tlicrefor,  contracting  that  the  articles,  wlien  manufactured,  should  be 
satisfactory  to  the  defendant,  he  can  recover  only  upon  the  contract  as 
it  was  made;  and  even  if  the  articles  furnished  by  him  were  such  that 
the  other  paity  ought  to  have  been  satislied  with  them,  it  was  yet  in  the 
power  of  the  other  to  reject  them  as  unsatisfactory.  It  is  not  for  any 
one  else  to  decide  whether  a  refusal  to  accept  is  or  is  not  reasonable, 
when  the  contract  permits  the  defendant  to  decide  himself  whether  the 
articles  furnished  are  to  his  satisfaction.  Although  the  compensation  of 
the  plaintiff  for  valuable  service  and  materials  may  thus  be  dependent 
ui)on  the  caprice  of  another,  who  unreasonably  refuses  to  accept  the 
articles  mannfa<!tured,  yet  he  cannot  be  relieved  from  the  contract  into 
which  he  has  voluntarily  entered.' 

When  an  express  contract,  like  that  shown  in  the  preserit  case,  was 
proved  to  have  been  made  between  parties,  it  was  not  competent  to  con- 
trol it  by  evidence  of  a  usage.  It  may  be  that  the  very  object  of  the 
express  contra<!t  was  to  avoid  the  effect  of  such  usage,  and  no  evidence 
of  usage  can  be  admitted  to  contradict  the  terms  of  a  contract,  or  con- 
trol its  legal  interpretation  and  effect.''  The  evidence  admitted  was  of 
this  description. 

Exceptions  sustained. 


McCarren  v.  McXulty,  7  Gray,  139. 


9  Dickinson  v.  Gay,  7  Allen,  29,  31. 


420 


WMKN    IN    roNKMCT    WITH    CONTKACTft,  KTC. 


Ndblc  V.  Durull. 


31.  CUSTOMS   CONTItARY   TO    STATUTES    BAD. 
NoiUJ'.    V.   DlKKI.Ii.* 

/,!  the  CiHirt  of  KIik/s  llritrk.  May,  1780. 
Rf.  II(»n.  Li.OYi),  Iiord  Ki;ny(»n,  LotiI  Chief  .Instice. 

Sir  VVlI.MAM     lIl'.NKY    ASIIIIIIKST,  Kl.,    j 


•'    FuANCis  Hiii.i.Kit,  Bart., 
♦'    Nash  (JiiosK,  Kt., 


Jud'jes. 


Where  a  ptntnte  declares  that  every  pound  of  butter  Hhall  weigh  Hrlern  ounres,  a  cuntom 
Ihiit  every  pound  of  butter  uuld  in  u  pui'ticuliir  iii:irket-towu  liliii!!  wuIkIi  eiyliteen 
ouiiucH  is  bud. 

This  was  an  action  of  trespass  for  tnkinjr  the  plaintiff's  butter.  'Dip 
defend.'uits,  in  their  plea,  after  stating  that  Soutiiamploii  \v:is  a  corpora- 
tion by  prescription,  and  that  they  annually  held  a  ctnirt-lcet  or  view  of 
frankplodnc  at  wliich  a  jury  is  sworn  and  continues  in  otllce  till  tlie  next 
court,  Jnstilied  as  to  some  of  the  jury  taking  the  butter  under  tlio  follow- 
ing custom:  "  That  every  pound  of  butter  exposed  to  sale  in  the  said 
markets  of  the  said  town,  within  the  said  town,  should  be,  and  oiigiit 
to  be,  of  the  weight  of  eighteen  ounces,"  alleging  that  the  butter  in  qiu's- 
tion  weighed  more  tlum  s'xtccn,  but  less  than  eighteen  ounces  to  the 
pound.     To  this  plea  there  was  a  general  demurrer  and  r(!Joinder. 

ffibbs,  in  support  of  the  demurrer,  insisteil  that  the  oustum  could  not 
he  suj)portcd,  because  it  was  against  the  law  of  the  land.  There  are 
several  statutes  which  direct  that  there  shall  be  onl^-  one  weight 
throughout  the  kingdom.'  And  the  11  Hen.  VII.,  c.  4,  directs  that 
the  knights,  etc.,  shall  cause  to  be  delivered  one  of  every  weight  and 
measure  which  the  king  liad  caused  to  be  made  of  brass,  according  to 
the  standard  in  the  Exchequer,  to  certain  towns  therein  mentioned,  of 
which  Southampton  is  one.  Those  statutes  meant  that  there  should  be 
an  uniformity  of  weight,  for  at  that  time  there  was  a  difference  between 
tilings  sold  by  troy  and  avoirdupois  weight.-  The  statute  V)  &  14 
('ar.  II.,  e.  26,  after  reciting  that  frauds  had  been  practised  in  selling 
butter  under  weight,  directs  that  every  kilderkin  shall  contain  one 
hundred  and  twelve  pounds,  every  pound  containing  sixteen  ounces. 
Now,  this  custom  attempts  to  set  up  a  particular  weight  for  Soutluiin])- 
ton  ;  but  a  custom  against  an  act  of  Parliament  caimot  be  supported.^ 

*  Ueportcd3Tenii  Itep.  ■.'71. 


;!l  Kdw.  III.,  St.  1,  c.  2;  13  Rich.  II.,  c.  9, 
lb  Rich.  II.,  c.  4;  ri  Hen.  VI.,  c.  .'i;  11  Hen. 
VII..  c.  4;  12  Hen.  VII.,  c.  5. 


•i  Dan.  .lu.-ii.  -248,  c.  112;  stat.  27  Kdw.  III.' 
St,  2,  c.  10;  i  Rich.  II.,  st.  1,  c.  1 ;  4  lust.  273. 
^  tirisling  v.  Wood,  Vro.  Klii.  85. 


CUSTOMS    CONTRARY   TO    BTAIT  IKS. 


l-M 


Illiistrutivc  (7.i.s(>s. 


mreg,  n  custom 
wuigh  eiyhleen 


>uUcr.     'riio 
IS  a  c'ori)ora- 
ct  or  view  of 
'.  till  the  iie\l 
T  tlio  foUuw- 
e  in  the  said 
e,  !ind  or.glil 
utter  in  (lucs- 
unces  to  the 
binder. 
)in  could  not 
'J'hcrc  arc 
one    wi'iifht 
directs  lliat 
Y  wei2;lit  and 
accordinjj;  to 
(lentioiK'd,  of 
re  should  be 
cncc  between 
utc  i;5  &  14 
sed  in  soiling 
conlnin  one 
teen  ounces. 
:)r  Soutlnnnp- 
e  supported.^ 


Here  the  cnslom  rcquire.s  that  a  pound  shall  vvei^ii  more  than  a  pound, 
which  leaves  untoueiied  a  question  respeutin^;  wiiich  sonic  doubt  h:t> 
been  entertained :  whetiicr  a  custom  that  butter  shall  be  sold  in  lumps  of 
a  certain  wci<i;ht  is  good. 

Burroughs  contra.  —  The  object  of  woif^hts  and  measures  is  that  there 
shall  be  one  certain  and  known  wcij^ht ;  and  it  is  as  convenient  to  the 
inhabitants  of  a  particular  town  to  have  a  pound  to  consist  of  elirjiteen 
as  of  sixteen  ounces.  This  is  a  customary  weijj;ht,  and  not  orii^iiinlly 
introduced  by  statute.  It  is  said,  indeed,  in  iMa<;na  Charta  that  there 
shall  be  one  weight  and  one  measure,  but  it  docs  not  specify  what  that 
weight  or  measure  shall  be;  it  leaves  the  matter  as  it  stood  before. 
Therefore,  a  custom  which  existed  before  of  a  particular  weight  was  not 
done  away  by  that  statute.  In  the  ca.se  of  ale,  c./rn,  and  some  ollnu' 
things,  there  is  reference  to  the  weights  and  ineusures  in  Ijondon,  but 
not  so  in  the  case  of  butter.  The  statute  tracfatus  de  penderitus  et 
vieiuiuris  (which  must  have  been  passed  as  tiarly  as  the  time  of  Edward 
I.,'  because  Fleta-  mentions  it  in  almost  the  same  words)  is  the  liisl 
statute  that  speaks  of  troy  weight.  But  it  is  not  pretended  that  butt«  r 
was  ever  bought  or  sold  by  troy  weight.  "And  notwithstanding  it  is 
directed  by  Magna  Charta,  and  the  several  statutes  cited,  that  there 
shall  be  but  one  weight,  there  always  have  been,  and  still  are  two  kinds 
of  weights  used  in  England,  and  both  warrantable,  the  one  by  law  and 
the  other  by  custom,  yet  confirmed  also  by  statute."  ^  This,  then,  may 
be  supported  as  a  customary  weight.  A  custom  m.iy  be  set  up  in 
opposition  to  the  common  law,  or  even  statute,  where  it  is  an  aiflrmativi* 
act.  ''  Tliere  is  a  diversity  between  an  act  of  Parliament  in  the  negative 
and  in  the  alfirmative,  for  an  aflinnative  act  doth  not  take  away  a  cus- 
tom."^ So,  by  27  lien.  VI.,  c.  5,  a  fair  or  market  shall  not  be  held 
on  a  Sunday,  upon  a  forfeiture  of  all  goods  sold  to  the  lord  of  the 
franchise.  "And  yet  a  prescription  to  hold  a  fair  on  the  2'Jth  (»f  Sep- 
tember is  good,  though  it  may  l)e  on  a  Sunday  ;  for  a  fair  on  that  day  is 
not  void,  though  the  goods  then  sold  shall  be  forfeited  by  the  27 
Hen.  VI.,  c.  5.^  It  is  enacted  by  the  statute  27  Edw.  III.,  st.  2,  c.  U), 
that  there  shall  be  but  one  weight,  etc.,  and  it  speaks  of  avoirdupoi'^ 
weight,  but  it  does  not  say  what  the  avoirdupois  weight  shall  he ;  and 
that  statute  was  passeil  to  prevent  a  particular  kind  of  fraud  practiso<l 
by  buying  with  one  weight  and  selling  with  another.     With  respect  to 

II.,  c.  26,  that  only  applies  to  butter  sold 


; 


the  statute  13  &  14  Car. 


tat.  27  Eilw.  III.' 
c.  1 ;  4  UiHt.  '273. 
Kliz.  85. 


•  31  Eilw.  1. 

2  Lib.  2,  c.  12. 

'  Dalt.  Just.,  fl.  112:  2  Shaw,  36. 


<  Co.  Lit.  115  a. 

»  Com.  Dig.,  tit.  "  Market,"  D;  Cro.  Eliz. 
48S. 


r 


>% 


mm 

j 

iif  '■■'''    ( 

m'i^\  1 

n|tl': 

HpK    ,  1} 

fl^n'  ^'^ 

uStM.  '' 

Hr  ^ 

■;« 

HP '-' 

,!• 

^'1 

; 

4'22 


nilKN     IN    COXKLICT    WITH    (•(»MI!ACTS,    Kl< 


Noble  V.  Diirell. 


by  the  wholosale,  for  it  directs  that  every  kilderkin  of  butter  shnll  con- 
tain one  hundred  and  twelve  pounds,  every  pound  contain-njij  >i\toon 
ounces.  It  is  of  importance  tliat  this  custom  should  be  supported, 
since  it  may  affect  other  customary  rights  in  several  parts  of  the 
kinoflom  wliere  butter  is  sold  by  the  yard  or  pint.  But,  even  supprisiiin 
that  the  statutes  on  this  subject  destroyed  all  tlie  customs,  stil'  tbi^ 
plaintiff  should  have  replied,  that  in  point  of  fact  tiie  weiglits  were  sent 
to  Southampton  as  directed  by  the  11  lien.  VII.,  c.  4;  for,  till  tliey 
were  sent  to  the  different  towns  there  enumerated,  (he  old  customs  \\ere 
in  force.  In  Heaton  v.  As^hdoum^^  where,  to  an  action  of  trespass  for 
breaking  and  entering  the  plaintiff's  close,  etc.,  the  defendant  pleaded  u 
prescriptive  right  of  common  on  the  place  in  question  for  cattle,  eU;.,  ex- 
cept  such  parts  of  the  said  close  where  the  i)laintiff,  and  tliose  whose  ostale 
he  had,  had  immemorially  cut  the  underwood  there  growing,  and  had 
enclosed  such  parts  thereof  with  a  fence  to  prevent  the  future  growth  of 
the  wood  for  three  successive  years  next  after  such  cutting  down,  etc., 
and  issue  thereou,  a  verdict  had  been  found  for  the  defendant,  a  mf)ti()n 
was  then  made  to  enter  up  judgment  for  the  plaintiff,  on  the  ground  that 
the  prescription  was  bad,  as  setting  tip  a  right  contrary  to  t'-e  provisions 
of  the  statute  oit  Hen.  VIII.,  c.  17,  sect.  7,  that  statute  having  directed 
that  woods,  when  cut  down,  should  be  enclosed  for  seven  years  (auij 
enlarged  by  13  Eliz.,  c.  25,  to  nine  years).  To  this  it  was  answered, 
on  the  part  of  the  defendant,  that  in  the  case  of  common  wooda 
the  statute  i)rescribes  a  particular  mode  of  en(;losiug  and  ciittin'j;, 
and  that  it  was  necessary  for  the  plaintiff,  if  lie  meant  to  avail  himself 
of  the  statute,  to  have  shown  by  his  replication  that  he  had  acted  con- 
formably to  the  directions  of  the  statute,  and  that  the  statute  had  left 
the  general  riglit  of  common  upon  the  same  footing  as  before,  and  con- 
sequently that  the  prescription  was  rightly  pleaded.  And  the  (H)urt 
being  of  this  opinion,  discharged  the  rule. 

Lord  Kknyon,  C.  J.  (stopping  Gibbs^  in  reply).  —  In  deciding  this 
question,  I  wish  not  to  be  understood  to  say  that  a  custom  may  not  pre- 
vail that  butter  shall  be  solil  in  lumps  or  yards,  containing  anygi\('ii 
numlier  of  ounces;  but  the  question  now  before  the  court  is,  whethei'  a 
custom  in  Southampton  that  a  pound  shall  contain  eighteen  ounci  s  can 
be  supported  in  law.  To  say  that  it  can  would  be  to  violate  all  the 
rides  of  language,  as  long  as  the  acts  of  Parliament  which  have  l)cen 
cited  are  to  regulate  this  sul»je(!t.  This  has  engaged  tlic  attention  of 
the  legislature  for  five  centuries,  and  they  have  thf)uglit  it  of  tiie  utrnpst 
iiiil)ortaiice  l>li at  there  should  be  one  st.'iudard  of  weights  and  inesisurcs 

'  It.  l{.,T.,19Geo.  Iir.,c.  7. 


CUSTOMS    CONTKARY   TO    STATLTKs. 


42a 


Illustrative  Cases. 


cr  sh'.ill  con- 
ivnpr  >ixtoon 

S    SU|)l)()llC(l, 

>arts   of   the 

511  SUppdsinor 

ms,  stil'  the 
its  wore  sent 
or,  till  tlicy 
Mstoms  were 
trespass  for 
nt  pleadi'il  u 
-tie,  et,(!.,  ex- 
wliose  estate 
iijT,  und  had 
re  growth  of 
f  down,  etc., 
lilt,  a  motion 
ground  that 
.e  provisions 
dng  directed 
I  years  (and 
as  answered, 
imf>n  wooiis 
ind  cnttinii, 
xvail  himself 
d  acteil  con- 
tute  had  icft 
re,  and  coii- 
d  the  court 

ccidin<f  lliis 
nay  not  pn- 
g  any  uivi'ii 
s,  whclluT  a 
I  ounces  ran 
-)late  all  the 
1  have  lieen 
attention  of 
f  tiie  utmost 
id  ineiisurcs 


throughout  the  kingdom.  But  it  is  said  that  there  is  no  objection  (a 
die  force  of  reason  and  convenience  why  this  rule  should  not  be  relaxed 
in  a  particnilar  town,  because,  when  the  exception  is  once  established, 
the  inhabitants  of  that  town  will  square  their  notions  accordingly.  But 
it  is  material  to  consider  whether  the  exce|)tion  to  the  rule  will  be  con- 
lined  to  butter  oidy.  If  this  custom  can  bo  established,  it  may  also  be 
extended  to  hops  in  Kent,  or  to  any  other  commodity  in  any  other  part 
of  the  kingdom,  and  thus  the  greatest  confusion  will  be  introduced  on  a 
subject  that  ought  to  be  particularly  plain.  So,  one  measuri"  might 
prevail  in  Pool,  another  at  Dartmouth,  etc.,  and  thus  foreign  merchants 
would  never  know  on  what  terms  they  were  treating.  It  might  be  as 
well  contended  that  a  custom  could  |)revail  in  a  particular  place  that  a 
less  number  of  days  than  seven  should  constitute  a  week,  or  that  a  less 
space  of  ground  than  an  acre  should  be  called  an  acre.  It  was  then 
objected  that,  even  supposing  that  the  statute  of  Henry  VII.  api)lied 
universally,  the  old  customs  should  prevail  till  the  weights  and  measures 
wc'-e  sent  down  from  the  Exchequer,  which  was  directed  to  be  done  by 
^  tliat  act,  and  that  the  plaintiff  should  have  replied  that  in  point  of  fact 
they  were  sent  to  Southampton.  But  the  legislature  did  not  say  that 
till  that  was  done  the  old  customs  should  prevail ;  and  we  cannot  sup- 
pose that  that  which  the  legislature  directed  was  not  done.  The  statute 
i;5  &  14  Car.  II.,  c.  26,  takes  it  for  granted  that  a  pound  shall  con- 
sist of  sixteen  ounces,  and  that  the  weights  and  iueasures  had  been 
sent  to  the  different  parts  of  the  kingdom.  There  are  two  kinds  of 
weights,  —  one  containing  twelve  ounces  of  a  certain  denomination,  the 
other,  sixteen  ounces  of  another  denomination,  —  and  it  appears  that 
butter  has  ui.v^ays  been  sold  by  the  latter.  Then  it  was  said  that  cus- 
toma  may  prevail  against  common  law,  but  they  are  such  consuetiidincs 
as  are  reasonable  and  beneficial ;  but  this  is  the  reverse  of  both,  for  all 
mankind  have  concurred  in  agreeing  that  for  their  mutual  convenience 
they  should  be  regulated  by  one  uniform  standard. 

Asmn  usT,  J. — The  only  ground  on  which  this  custom  can  be  sup- 
ported is  a  supposition  that  the  legislature  did  not  intend  to  interfere 
with  the  customs  of  any  particular  place.  But  that  is  totally  unfounded, 
for  the  legislature  supposetl  that  at  the  times  when  the  seveial  acts 
|)jissed,  different  weights  and  measures  prevailed  in  different  towna,  to 
remedy  which  inconvenience  they  passed  those  acts.  And  in  none  of 
them  is  there  any  reservation  of  any  ancient  customs,  but  they  are 
api)licable  to  every  place,  directing  that  in  future  there  shall  be  but  one 
weight  and  measure  throughout  the  kingdom. 

BuLLEu,  J. — This  case  docs  not  interfere  with  the  question  alluded 


I 


' 


>2 
I 


<!* 


iti; 


ll 

i   ^ 

1 ' 

■i: 


mu 


424 


WHEN   IN    CONFLICT   WITH    CONTRACTS,  ETC. 


Barnard  v.  Kelloiiir. 


to  in  the  argument:  whothor  a  custom  to  sell  butter  in  lumps  of  any  par- 
ticular weie;ht  is  good  or  not.  That  question  will  remain,  notwithstand- 
ing this  decision,  as  it  did  before  ;  and  I  have  never  seen  anythino^  in  the 
acts  of  Parliament  requiring  pereons  not  to  sell  more  or  less  than  a  pound. 
But  the  question  here  is  whether,  when  a  person  is  selling  butter  under 
the  specific  denomination  of  a  pound,  he  shall  be  compellable  to  sell  more 
than  a  pound.  Butter  is  directed  to  be  sold  by  avoirdupois  woinjht, 
where  a  pound  consists  of  sixteen  ounces.  Then  how  can  a  jjit-ou  who 
professes  to  sell  a  pound  of  butter  be  compellable  to  sell  more  than  a 
pound  ?  I  am  of  opinion  that  the  custom  cannot  be  supported. 
Gkose,  J.  —  Of  the  same  opinion. 

Judgment  for  the  plaiiUfff. 


32.  USAGES    IN   CONFLICT   WITH    HULES   OB^    LAW    INADMISSIBLE. 

BaUNAUI)    V.  Kl'XLOGG.* 

In  the  Supreme  Court  of  the  United  States^  December,  1870, 
Hon,  Salmon  Portland  Chask,  Chief  Justice. 

•♦      SaMURL  NKL.SON, 

"    Noah  H.  Swaynk, 
"    David  Davis, 

William  Strong, 

Nathax  Clifford, 

Samukl  F.  Miller, 

StEPIIKN  J.  FlKLD, 

JOSKPII  P.  Bradlky, 


<f 


Associate  Justices. 


1.  The  custom  of  merchants  and  de.ilcrs  in  wool  cannot  control  the  general  rules  of  l.iw  as 
to  tho  Kulo  of  personal  property. 

8.  A.,  a  wool-broker  in  Boston,  sent  to  B.,  a  wool-dealer  in  Uartfoni,  ,sain|ilc9  of  (DvciKi' 
w<i<>l-<  in  biilos,  which  he  was  .-ielling  on  commission,  and  H.  offered  to  purcliah(^  ai  llie 
prices  stated,  if  eiiual  to  tho  samplo-s.  A.  accepted  the  otfcr,  provided  15.  wouM  cuiiie 
to  lt<><ti>n  and  examine  the  wdoI.  IS.  went  to  lio.stDu,  and  after  CNaminin^  a  iioriion  <>l 
the  l)ales  (and  having  theo|)i)iirtunity  to  exiimini!  mII  and  open  tliein,  which  liedeclini'il;, 
j)urchased  the  wool.  It  proved,  however,  unknown  to  A.'.s  princiiial,  to  have  been 
deceitfully  packed,  and  much  in  the  interior  of  the  Ijales  was  rotten  anl  worlhlcHS.  In 
an  action  bronglit  by  B.  ag.inst  tho  principal  to  recover  damages,  it  was  lielil  llial  the 
rule  of  careat  emptor  applied,  and  that  evi<lence  was  nut  admissible  to  control  thai  riile, 
and  to  show  that  by  the  custom  of  merchants  and  dealers  in  wool  in  bales  in  r.o-icm 
and  New  York,  — the  two  principal  markets  in  the  country  tor  wool,  — there  i?^  an 
implied  warranty  by  the  seller  to  tho  purchaser  that  tho  wool  is  not  falsely  or  deceit- 
fully packed. 

•  Reported  10  Wall.  383. 


^ 


LSAGKS    AGAINST    RULES    OF    LAW 


425 


Illustrative  Cases. 


of  any  par- 
twitlistand- 
tliin.2:  ill  tlie 
iiiiapoiiiid. 
utter  under 
to  sell  inore 
ois  weiprht, 
pcr-on  wlio 
nore  than  a 
ed. 

plabitiff. 


IISSIBLK. 


1870. 


lies  of  liiw  as 

OS  of  fovcinu 
clui.so  ill  llie 
.  WDiiM  collie 
ii  ixirllon  (il 
hu<lL>rliiu'ilK 
I)  have  Lii'i'ii 
iii'llilcss.    In 

Infill  lllilt    llll' 

v»\  lli.il  rule, 

I's  ill  riii-iciii 

-tliLM-c  i;^  un 
ly  or  deceit- 


Error  to  the  Circuit  Court  for  the  District  of  Connecticut,  the  case 
being  this :  — 

In  the  summer  of  1864,  Barnard,  a  commission  merchant  residing  in 
Boston,  Massachusetts,  placed  a  lot  of  foreign  wool  received  from  ;i 
shipper  in  Buenos  Ayres,  and  on  which  he  had  made  advances,  in  the 
hands  of  Bond  &  Co.,  wool-brokers  in  Boston,  to  sell,  with  instructions 
not  to  sell  unless  the  purchaser  came  to  Boston  and  examined  the  wool 
for  himself.  These  brokers  sent  to  E.  N.  Kellogg  &  Co.,  merchants 
and  dealers  in  wool  in  Hartford,  Connecticut,  at  their  request,  samples 
of  the  dittcrcnt  lots  of  wool,  and  commtuiicatcd  the  prices  at  wliich 
each  lot  cf)uld  lie  obtained.  Kellogg  &  Co.,  in  reply,  offi'rcd  to  takt- 
the  wool,  all  round,  at  fifty  cents  a  pound,  if  equa'  to  the  sanii)les  fur- 
nished ;  and  Bond  &  Co.,  for  their  principal,  on  Saturday,  the  sixth  day 
of  August,  by  letter  and  telegram  accepted  this  offer,  provided  Kellogg 
&  Co.  examined  the  wool  on  the  succeeding  Monday,  and  reported  on 
that  day  whether  or  not  they  would  take  it.  Kellogg  &  Co.  acceded  to 
this  condition,  and  the  senior  member  of  the  firm  repaired  to  Boston  on 
the  day  named,  and  examined  four  bales  in  the  broker's  oflice  as  fully 
as  he  desired,  and  was  offered  an  opportunity  to  examine  all  the  bales, 
and  have  them  opened  for  his  inspection.  This  he  declined  to  do,  and 
concluded  the  purchase  on  the  joint  account  of  all  the  plaintiffs.  Some 
months  after  this,  on  opening  the  bales,  it  was  ascertained  that  a  portion 
of  them  were  falsely  and  deceitfully  packed,  by  placing  in  the  interior 
rotten  and  damaged  wool  and  tags,  which  were  concealed  by  an  outer 
covering  of  fleeces  in  their  ordinary  state.  This  condition  of  things 
had  been  unknown  to  Barnard,  who  had  acted  in  good  faitn.  It  was, 
however,  communicati^d  to  him.  and  lie  was  asked  to  indemnify  the  pur- 
chaser against  the  loss  he  sustained  in  consequence  of  it.  This  he 
declined  to  do,  and  the  purchaser  brought  this  suit.  The  declaration 
counted  — 

Fir-t.  Upon  a  sale  by  sample. 

Si'cond.  I'pon  a  i)romise,  express  or  implied,  that  the  bales  should 
not  be  falsely  packed. 

Third.  Upon  a  promise,  express  or  implied,  that  the  wool  inside  of 
the  bales  should  not  differ  from  the  samples  by  reason  of  false  packing. 

The  court  below,  trying  the  cause  without  the  intervention  of  a  jury, 
held  that  there  was  no  express  warranty  tliat  the  bales  not  exaniint'(l 
should  correspond  to  those  exhibited  at  the  broker's  store,  and  that  the 
law,  under  the  circumstances,  could  not  imply  any.  But  the  court  foimd 
as  matters  of  fact  that  the  examination  of  the  interior  of  the  bulk  of 
bules  of  wool,  generally  put  up  like  these,  is  not  customary  in  the  trade  ; 


421) 


WJiKN     IjN    tOAKLKT    WITH    tOMKACTS,   KTf. 


Barnard  v.  Kellog!». 


and,  though  possible,  would  be  very  inconvenient,  sittendcd  with  <j;ri;it 
labor  and  delay,  and  for  tliese  reasons  was  impracticahlo ;  and  tlmt  hy 
the  custom  of  merchants  and  dealers  in  foreign  wool  in  baltis  in  Boston 
and  New  York,  the  principal  markets  of  this  (tonntry  where  such  wfiol 
is  sold,  there  is  an  implied  warranty  of  the  seller  to  the  purchase r  thai, 
the  same  is  not  falsely  or  deceitfully  packed;  and  the  court  held  ;i.s  a 
matter  of  law  that  the  custom  was  valid  and  binding  on  the  pjuties  lo 
this  contract,  and  gavo  judament  for  the  puin  Imscr. 

This  writ  of  error  was  taken  to  test  the  concctiicss  of  this  lulin"-. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

No  principle  of  the  common  law  has  been  better  established  or  more 
often  atflrmed,  both  in  this  country  and  in  England,  llian  that  in  S!i!<'s 
of  personal  property,  in  the  absence  of  express  warranty,  when;  the 
buyer  has  an  opportunity  to  inspect  the  commodity,  and  the  seMcr  is 
guilty  of  no  fraud,  and  is  neither  the  manufacturer  nor  grower  of  the 
article  he  sells,  the  maxim  of  caveat  cmiitor  applies.  Such  a  role, 
requiring  the  purchaser  to  take  care  of  his  own  interests,  has  boon  found 
best  adapted  to  the  wants  of  trade  in  the  business  transa(;tioii8  of  lite. 
And  there  is  no  hardship  in  it;  because,  if  tlie  purchaser  distrusts  his 
judgment,  he  can  require  of  the  seller  a  warranty  that  the  qnanlity  or 
condition  of  the  goods  he  desires  to  buy  corresponds  with  the  suinple 
exhibited.  If  he  is  satisfied  without  a  warranty,  and  (^an  inspect  and 
declines  to  do  it,  he  takes  upon  himself  the  risk  that  tlie  ;!.iticle  is  uut- 
cliantuble.  And  he  cannot  relieve  himself  and  cliargo  the  seUcr  on  the. 
ground  that  the  examination  will  occupy  time,  ;ind  is  attended  with 
labor  and  inconvenience.  If  it  is  practicable,  no  matter  how  incon- 
wMiient,  the  rule  applies.  One  of  the  main  reasons  why  the  rule  does 
not  apply  in  the  case  of  a  sale  by  sample  is  because  there  is  no  oppor- 
tunity for  a  personal  examination  of  the  bulk  of  the  commodity  uiiieh 
the  sami)le  is  sliown  to  represent.  Of  such  universal  acceptance  is  the 
doctrine  of  caveat  emptor  in  this  country  that  ihe  coui'ts  of  all  tlic 
States  in  the  Union  where  the  common  law  prevails,  with  one  exception 
(South  Carolina),  sanction  it. 

Applying  this  acknowledged  rule  of  law  to  this  case,  it  is  easy  to 
settle  the  rights  of  the  parties  and  to  interpret  the  contract  which  the\ 
made.  That  the  wool  was  not  sold  by  sample,  clearly  appi'ars.  And  it. 
is  equally  clear  tliat  both  siiles  understood  tliat  the  buyer,  if  he  bought, 
was  to  be  his  own  judge  of  the  quality  of  the  article  lie  purchased. 
Barnard  expressly  stipulated,  as  a  condition  of  sale,  that  IveUoiru  siiould 
examine  the  wool,  and  he  did  examine  it  for  himself.  If  Kellngi!:  in- 
tended to  rely  on  the  samples  as  a  basis  of  purchase,  why  did  lie  go  to 


m^' 


l\SA<}ES    AGAINST    RULES    OF    LAW. 


427 


Illustrative  biases. 


with  <rri';it 
lid  tliat  l)y 
<  in  Boston 
siicli  wool 
iliasiT  that 
•t  held  as  a 
-^  parties  to 

ruling;. 

ed  or  more 

lat  in  sales 

,  where  the 

he  seller  is 

)wer  of  the 

leh  a  rule, 

been  found 

ons  of  life. 

listru>ts  his 

quantity  or 

the  sample 

nspect  and 

,it'le  is  nier- 

L'ller  on  the. 

'uded  with 

low  ineon- 

rule  does 

no  oppor- 

)dity  which 

anee  is  the 

of  all   the 

exception 

is  eai-'v  to 
which  the\ 
And  it 
he  bouLj;ht, 
purchased. 
lo'^'  should 
\,elli>i?ii:  in- 
d  he  go  t'» 


Boston  and  inspect  the  bales  at  all,  after  notice  that  such  inspection  wius 
necessary  before  the  sale  could  be  completed?  His  conduct  is  wholly 
inconsistent  with  the  theory  of  a  sale  by  sample.  If  he  wanted  to 
secure  himself  asjainst  possible  loss,  he  should  cither  have  required  a 
warranty  or  taken  the  trouble  of  inspecting  fully  all  the  bales.  Not 
doing  this,  he  cannot  turn  round  and  (charge  the  seller  witii  the  conse- 
(]Uonces  of  his  own  negligence.  Barnard  acted  in  good  faith,  and  did 
not  know,  or  have  reason  to  believe,  that  the  wool  was  falsely  packed. 
The  sale  on  his  part  was  intended  to  be  upon  the  usual  examination  of 
the  article,  and  the  proceeding  by  Kellogg  shows  that  he  so  understood 
it.  and  it  is  liaid  to  see  what  ground  of  complaint  even  he  has  against 
llarnard.  It  will  not  do  to  say  that  it  was  inconvenient  to  examine  all 
the  bales,  because,  if  inconvenient,  it  was  still  i)racticable ;  and  that  is 
all,  as  we  liave  seen,  that  the  law  requires.  The  case  of  Salinbary  v. 
Sfainer^  is  similar  in  its  facts  to  this  case,  and  the  court  applied  to  it 
the  rule  of  avm-^n  emptor.  There  bales  of  hemp  were  sold,  which  turned 
out  to  be  falsely,  packed.  The  purchaser  wished  to  treat  the  sale  as  a 
.sale  by  stunple,  but  tlu^  court  said  to  him:  "  You  were  told  to  examine 
for  yourself,  and  having  opened  one  bale,  and  at  liberty  to  open  all,  and 
omitting  to  do  it,  you  cannot  be  permitted  to  allege  that  the  sale  was  a 
sale  by  sample,  nor  to  recover  damages  as  on  an  imi)lied  warranty." 
It  is  therefore  clear,  by  the  general  principles  of  law  adopted  in  the 
interests  of  trade  and  commerce,  that  the  seller  in  this  instance  was  not 
answerable  over  for  any  latent  defects  in  the  bales  of  wool. 

But  tlie  learned  court  below  having  found  that  by  the  custom  of 
dealers  in  wool  in  New  York  and  Boston  then;  is  a  wtirranty  by  the 
Keller,  implied  from  the  fact  of  sale,  that  the  wool  is  not  falsely  packed, 
and  having  held  Barnard  bound  by  it,  the  inquiry  arises  whether  such  a 
custom  can  be  admitted  to  control  the  general  rules  of  law  in  relation  to 
the  sale  of  pc  soiial  property. 

It  i8  to  be  regretted  that  the  decisions  of  the  courts  defining  what 
local  usages  may  or  may  not  do  have  not  been  uniform.  In  some 
judicial  tribunals  there  luis  been  a  disposition  to  narrow  the  limits  of 
this  species  of  evidence,  in  others  to  extend  them ;  and  on  this  account, 
maiidy,  the  conilict  in  decision  arises.  But  if  it  is  hard  to  reconcile 
all  the  cases,  it  may  be  safely  said  they  do  not  differ  so  much  in  prin- 
ciple as  in  the  application  of  the  rules  of  law.  The  pr()j)er  olficc  of  a 
custom  or  usage  in  trade  is  to  ascertain  and  explain  the  meaning  and 
intention  of  the  parties  to  a  contract,  whether  written  or  in  parol,  which 
eould  not  be  done  without  the  aid  of  this  intrinsic  evidence.     It  does 

1  19  Wend.  l.W. 


'■& 


~t 


H 


'rt: 


'.  \ 


428 


WHKN    1\    CONFLICT    WITH    (;()MI:a<   is,   KJC 


Barniinl  v.  Kcllojz^. 


not  go  beyond  tliis ;  and  is  used  as  a  .node  of  irilorprotalion,  on  tlic 
theory  that  the  parties  knew  of  its  oxisteiiec  and  contiatitcd  with  ret'cr- 
ence  to  it.  It  is  often  employed  to  exphiln  words  or  phiasis  in  a  con- 
tract of  doubtful  si<rullication,  or  which  may  be  understood  in  different 
senses,  according  to  tlie  subject-matter  to  which  they  are  applied.  lUit 
if  it  be  inconsistent  with  tlie  contract,  or  expressly  or  by  necessaiy  im- 
plication contradicts  it,  it  cannot  be  received  in  evidence  to  iiffint  it.' 
"Usage,"  says  Lord  Ltndiiukst,  '•  may  be  admissible  to  exi)laiii  wluit 
is  doubtful ;  it  is  never  admissible  to  contradict  what  is  plain."  '-'  And 
it  is  well  scuttled  that  usage  cannot  be  allowed  to  subvert  the  se1!liMl 
rules  of  law.^  Whatever  tends  to  unsettle  the  law,  and  make  it  (lilfcr- 
ent  in  ilie  different  communities  into  wiiich  the  State  is  divided,  leads 
to  mischievous  consequences,  embarrasses  trade,  and  is  against  piil)iie 
policy.  If,  therefore,  on  a  given  state  of  facts,  the  righls  and  liahiHties 
of  the  parties  to  a  contract  arc  fixed  by  the  general  princi|)les  of  ilu; 
common  law,  they  cannot  be  tiininged  by  any  local  custom  of  the  phicc 
where  the  contract  was  made.  In  this  case  the  common  law  did  not, 
on  the  admitted  facts,  imply  a  warranty  of  the  good  quality  of  the  wool. 
and  no  cnsiom  in  the  sale  of  this  article  can  be  admitted  to  imply  one. 
A  contrary  doctrine,  says  the  court  in  Tliompson  v.  Aslitoii,*  "  w>iuM 
be  extremely  pernicious  in  its  consequences,  and  render  vague  and  un- 
certain all  the  rules  of  law  on  the  sales  of  chattels." 

In  ]\Iass!U'husetls,  where  this  contract  was  made,  the  more  recent 
decisions  on  the  subject  are  against  the  validity  of  the  custom  set  up  in 
this  case.  In  Dickinson  v.  Gay,^  which  was  a  sale  of  cases  of  satinets 
*  made  by  samples  there  were,  in  both  the  samples  and  the  goods,  a 
latent  defei-t  not  discoverable  by  inspection,  nor  until  the  goods  were 
printed,  so  that  they  were  unmerchantable.  It  was  contended  that  by 
custom  there  was,  in  such  a  case,  a  warranty  implied  from  the  sale  tiiat 
the  goods  were  merchantable.  But  the  court,  after  a  full  review  of  all 
the  authorities,  decided  that  the  custom  that  a  warranty  was  implied, 
when  by  law  it  was  not  implied,  was  contrary  to  the  rule  of  the  comnmn 
law  on  the  subject,  and  therefore  void.  If  anything,  the  case  of  Dodil 
V.  Fitrloiu^  is  more  conclusive  on  the  jioint.  There,  forty  bales  of  gosit- 
skins  were  sold  by  a  broker,  who  put  into  the  memorandum  of  sale, 
without  authority,  the  words,  "to  be  of  merchantable  quality  and  in 
good  order."     It  was  contended  that,  by  custom,  in  all  sales  of  sneli 


1  Sec  notes  to  Wigglesworlli  ,-.  Dalli^^ou, 

1  Sinitli'M  Lil.  (;ii8.  4118;  2  Pars,  mi  »'<iii.  ."i:i."), 
§9;  Taylor  on  Kv.  943. 

-  Hlackolt  c.  Koyal  Kxchaii^e  As.siir.  Co., 

2  Cronii).  &  J.  2t9;  ante,  p.  4l:S. 


'■'  See  note  to  1  Sniitli's  LU.  Cas.,  tupra. 
•I  14  .Johns,  inv. 
•''  7  AMeri,  -I'X 
«  11  Allen,  426. 


^ 


UHAOKS    A0AIN8T    RULES    OF    LAW. 


42!) 


Illustriitivc  Cases. 


ion,  on  tin* 
with  refei- 
s  in  !i  t()n- 
11  different 
lied.  Hut, 
:ossarv  im- 
tiffcct,  it.' 
plain  wlial, 
I."  2  And 
the  sot'li'd 
:o  it  (Urfci- 
ided.  loads 
iiist  public 
1  lial)iiiti('s 
i)le.s  of  ihii 
tlio  phicc 
\\  did  iKjt, 
f  tlio  wool. 
imply  one. 
,*  "  would 
ic  and  un- 

orc  rect'iit 
n  set  up  in 
of  salin(M.s 
<j:oods,  a 
joods  were 
d  that  liy 
,e  sale  that 
'ieAV  of  all 
LS  implied, 
le  common 
0  of  Dorhl 
es  of  goat- 
n  of  sale. 
it}'  .nnd  in 
es  of  such 

aa.,  tupra. 


I 


skins  there  was  an  implied  warranty  that  they  were  of  merchant  able 
quality,  and,  therefore,  the  broker  was  antiiorized  to  insert  the  words ; 
but  the  court  held  the  custom  itself  invalid.  They  say:  "It  contra- 
venes the  principle  whi(;h  has  been  sanctioned  and  adopted  by  this 
court,  upon  full  and  delilieratc  consideration,  that  no  usage  will  be  held 
legal  or  binding  on  parties  which  not  only  relates  to  and  regulates  a 
particular  course  or  mode  of  dealing,  but  which  also  engrafts  on  a  con- 
tract of  sale  a  stipulation  or  obligation  which  is  inconsistent  with  the 
rule  of  the  (tommon  law  on  the  subject."  It  is  clear,  therefore,  that  in 
INIassachusetts,  where  the  wool  was  sold  and  the  seller  lived,  tluj  usage 
in  question  would  not  have  been  sanctioned. 

In  New  York  there  are  some  cases  which  would  seem  to  have  adopted 
a  contrary  view,  bnt  the  earlier  and  later  cases  agree  with  the  Massa- 
chusetts decisions.  The  (luestion  in  Fn'lh  v.  linrkcr^  was  wliether  a 
custom  was  valid  that  freight  must  be  paid  on  goods  lost  by  peril  of  the 
sea,  and  Chief  .Fust ice  Ki;\t,  in  deciding  that  the  custom  was  invalid, 
says:  "Though  usag*'  is  often  resorted  to  for  explanation  of  commer- 
cial instruments,  it  n(!vei'  is,  or  ought  to  be,  received  to  contradict  a 
settled  rule  of  commercial  law."  In  Wnodruff'  v.  Merchants'  Jinnkr 
a  usage  in  the  city  of  N'.nv  York  that  days  of  gra(;e  were  not  allowed  on  a 
certain  description  of  comiii<M-cial  pai)er  was  held  to  be  illegal.  Nki.- 
soN, -C.  J.,  in  giving  the  opinion  of  that  court,  says:  "The  effect  of 
the  proof  of  usage  in  this  case,  if  sanctioned,  wouhl  be  to  overturn  the 
whole  law  on  the  subject  of  bills  of  exciiange  in  the  city  of  New  York ;  " 
and  adds:  "If  the  usage  prevsrds  there  as  testified  to,  it  cannot  be 
allowed  to  control  the  settled  and  acknowledged  law  ox'  the  State  in 
respect  to  this  description  of  paper."  And  in  Beirni'  v.  Dodd,'-^  the 
evidence  of  a  custom  that,  in  the  sale  of  blankets  in  bales,  where  there 
was  no  exjiress  w:irrantv,  the  seller  impliedly  warranted  them  all  equal 
to  a  sample  shown,  was  held  inadmissible,  because  contrary  to  the 
settled  rule  of  law  on  the  subject  of  chattels.  Rut  the  latest  authority 
in  that  State  on  the  subject  is  the  case  of  Simmons  v.  Lnw.^  That  was 
an  action  to  recover  the  value  of  a  quantity  of  gold-dust  shipped  by 
Simmons  from  San  Francisco  to  New  York  on  Law's  line  of  steamers, 
which  was  not  delivered.  An  attempt  was  made  to  limit  the  liability  of 
the  common  carrier  beyond  the  terms  of  the  contract  in  the  bill  of 
lading,  by  proof  of  the  usage  of  the  trade,  which  was  well  known  to  the 
shipper,  but  the  evidence  was  rejected.  The  court,  in  commenting  on 
the  question,  say:  "A  clear,  certain,  and  distinct  contract  is  not  sub- 


1  'i  Johns.  327. 
-  iS  Wcnil.  073. 


a  1  Seld.  !». 
«  3  Keyed,  219. 


4^0 


WIIKN    IN    CONFLICT    WITH    (^ONTRA(;i  S,   !■  TC. 


Barnard  v.  KcIlo<;g. 


ject  to  modification  by  proof  of  usage.  Such  a  coiitniut  disposes  of  ;ill 
oustoms  by  its  own  terms,  and  by  its  terms  alone  is  the  conduct  of  tlu; 
parties  to  be  regulated  and  tlieir  liability  to  bo  determined." 

In  Pennsylvania  this  subject  has  been  much  discussed,  and  not  always 
with  the  same  result.  At  an  early  day  the  Sui)reme  Coort  of  the  Stati; 
allowed  (evidence  of  usage  that  in  the  city  of  Philadelphia  the  seller  of 
cotton  warranted  against  latent,  defects,  though  there  were  nt;itlier 
fraud  on  his  part  nor  actual  warranty.*  Chief  Justice  Gibson  at  the  tiiru- 
dissented  from  the  doctrine;  and  the  same  court,  in  later  cases,  has  dis- 
approved  of  it,'-*  and  now  hold  that  a  u^age,  to  be  admissible,  "  niu-t 
not  conflict  with  the  settled  rules  of  law,  nor  go  to  defeat  the  ('-i-oMiial 
terms  of  the  contract." 

It  would  unnecessarily  lengthen  this  opinion  to  review  any  further  Mic 
Amei'ican  authorities  on  this  subject.  It  is  enougii  to  say,  as  a  gencM'.ii 
thing,  that  they  are  in  harmony  with  the  decisions  already  n  )ti(!ed. 
See  the  American  notes  to  Wir/yleNioorth  v.  Dallison,^  where  the  oases  are 
collected  and  distinctions  noticed. 

The  necessity  for  discussing  this  rule  of  evidence  has  often  occut  rcil 
in  the  highest  courts  of  England,  on  a(!Count  of  the  great  extent  and 
vai'iety  of  local  usages  whicth  prevail  in  that  country,  but  it  would  sirvc 
no  useful  purpose  to  review  the  cases.  They  are  collected  in  the  very 
accurate  English  note  to  Wi'gylesworth  v.  Ddllison,  an  i  are  not  diffireiit 
in  principle  from  the  genend  current  of  American  cases.  If  any  of  the 
cases  are  in  apparent  conflict,  it  is  not  on  account  of  any  differen(;e  iti 
opinion  as  to  the  rules  of  law  which  are  applicable. 

These  rules,  says  Chief  Justice  Wiudk,  in  Spnrfali  v.  Bencch',^  "  are 
well  settled,  and  the  difficulty  that  has  arisen  respecting  them  has  been 
in  their  application  to  the  vai-ied  circumstances  of  the  inimerous  cu'^es  in 
which  the  discussion  of  them  has  been  involved."  Bui  this  difMculiy 
does  not  exist  in  applying  these  rules  to  the  circumstancjcs  of  this  case. 
It  is  apparent  that  the  us:i<i(i  in  question  was  inconsistent  with  the  con- 
tract which  the  parties  (ihose  to  make  for  themselves,  and  contrary  1o 
the  wise  rules  of  law  governing  the  sales  of  personal  property.  It  in- 
troduced a  new  element  into  their  contract,  and  added  to  it  a  warranty 
which  the  law  did  not  raise  nor  the  parties  intend  it  to  contain.  The 
parties  negotiated  on  the  basis  of  caimit  emptor,  and  contracted  accord- 
ingly. This  they  had  the  right  to  do  ;  and,  by  the  terms  of  the  contract, 
the  law  placed  on  the  buyer  the  risk  of  the  purchase,  and  relieved  the 


'  Snowden  v.  Warner,  :J  Rawle,  101. 
-  Cox  V.  Heislcy,  1!)  Pa.  St.  243;  Wetherill 
r.  Neilson,  iiO  Pa.  St.  448. 


»  1  Smith's  T,r1.  Cas.  498. 
«1U0.  B.222. 


USAOK.S    AOAINST    I'UBLIC    POLICY. 


431 


Illustrativft  (biases. 


8oU»;r  from  liability  for  lahMit  defects.  But  this  usaj^e  of  trade  steps  in 
and  seeks  to  change  the  position  of  the  parties,  and  to  impose  on  the 
seller  a  burden  which  the  law  said,  on  raal<in<r  his  contract,  he  should 
not  carry.  By  this  means  a  new  contract  is  made  for  the  i)arties,  and 
their  rights  and  liabilities  under  the  law  essentially  altered.  This,  as 
we  have  seen,  caimot  be  done.  If  the  doctrine  of  canent  emptor  can  be 
changed  by  a  special  usage  of  trade,  in  the  manner  proposed  by  the 
custom  of  dealers  of  wool  in  Boston,  it  is  easy  to  see  it  can  be  changed 
in  other  particulars,  and  in  this  way  the  whole  doctrine  frittered   away. 

It  is  i)roi)er  to  add,  iti  concluding  this  opinion,  that  the  conduct  of 
the  parties  shows  clearly  that  they  did  not  know  of  this  custom,  and 
could  not,  therefore,  have  dealt  with  reference  to  it. 

Judgment  reversed  and  the  cause  remanded,  with  directions  to  award 
a  vt'iiirede  novo. 

Bkadlet  and  Stuonu,  JJ.,  dissented. 

Judgment  reversed. 


33.  USAGES  IN  CONFLICT  WITH  RULKS  OF  PUBLIC  POLICY  ILLEGAL. 

Raisin  v.  Clark.* 

In  the  Court  of  Appeidn  of  M'lrjiliual.,  October   Term.,  1874. 

Hon.  Jamks  L.  Bautol,  Chief  Justice. 
*•    Jamks  A.  Stkwakt, 
«'    JouN  M.  Robinson, 
"      RlCUAlM)  Gkayson, 

RiCUAItl)    II.  Al.VKY, 

Ol.IVIOK    MlI.I.KK, 

Rl(  HAlU)    J.  BOWIK, 

(jKOKCiK    BlSK.N'T, 


l< 
(< 
<( 


■  Associate  Justices, 


It  is  n  rule  of  law  that  an  agent  cannot  act  as  such  for  both  vendor  and  pnrchaser,  and 
receive  payment  for  his  ^iervices  from  both.  Tlierefore,  a  custom  among  brokers  in  the 
city  of  Haltimoru  that  in  exchanges  of  real  estate  they  are  entitled  to  a  commission  of 
two  and  a  half  per  cent  from  each  party  on  the  value  of  the  property  exchanged,  is 
invalid. 

Action  to  recover  commissions.     The  opinion  states  the  case. 
R.  R.  B'virman  and  William  A.  Fisher.,  for  the  appellant;   Fielder 
C.  Slinghiff,  for  the  ai)pellee. 
MiLLEU,  J.,  delivered  the  opinion  of  the  court. 


i 


*  Reported  41  Md.  158;  20  Am.  Kep.  66. 


4«2 


WIIKN    IN    CONKUrr    WITH   CONTRACTS,  KTC. 


Uaisiii  V.  Clark. 


iN 


The  appellant  is  a  real-oslate  broker,  doin<>;  busiiicsH  in  Bjiltitiioic  city, 
and  as  such  was  era[)l()yt'<l  by  Mr.  Cooper  to  sell  for  hira  his  f.irm  in 
Baltimore  County.  As  Cooper's  a^ent,  he  advertised  the  faiin  for 
sale;  and  the  appellee,  seeiiii;  the  advertisement,  (%'illed  upon  him  and 
proposed  to  exchanjife  a  liouse  she  owned  in  tlu^  city  for  the  farm,  and 
the  exchange  was  effected.  Cooper  pai<'  the  appi-Ihint  the  usual  com- 
mission of  two  and  a  iialf  per  cent  on  $(!,()00,  the  value  pl.iced  upon 
the  properties  so  exchanj^ed,  and  in  this  action  he  seeks  to  recover  tiie 
like  commission  from  the  appellee.  He  places  his  claim  on  two  fi^rouiids : 
b'irst,  upon  an  express  agreement  or  contract  between  the  appellee  and 
himself  that  she  should  i)ay  him  such  commission  in  case  the  exchanifc 
was  effected;  and,  second,  upon  an  alleged  custom  or  usage  anion;'- 
brokers  in  the  city  of  Baltimore  t';nt  in  exchanges  of  real  estate  tlicy 
are  entitled  to  a  commission  of  two  and  a  half  per  cent  from  each  parly 
on  the  amount  or  value  of  the  property  exchnnged. 

The  testimony  is  contlicting  as  to  the  making  of  the  alleged  agive- 
ment.  but  the  question  presented  for  the  determination  of  this  court  hv 
the  |)i'esent  appeal  is  whether  su(;h  an  agreement,  if  made,  can  lit; 
enforced  by  the  agent  by  an  action  founded  thereon.  That  the  appel- 
lant was  Cooper's  agent  to  sell  his  farm,  and  that  the  alleged  agreement, 
if  ever  made,  was  entered  into  while  this  employment  continued,  arc 
conceded  facts  in  the  case.  In  this  state  of  facts,  could  he  lawfully 
l)ecome  the  agent  of  the  party  by  whom  the  farm  was  purchased,  by 
way  of  exchange  of  property?  In  (Mir  opinion,  it  is  very  clear  he  (loii'fl 
not.  It  is  a  general  rule  that  a  party  cannot,  in  any  Jigency  of  tlii.^ 
kind,  act  as  agent  or  broker  for  l)oth  vendor  and  vendee  in  respect  to 
the  same  transaction,  because  in  such  case  there  is  a  necessary  oon- 
llict  between  his  interest  and  liis  duty.  The  vendor,  in  the  employment 
of  an  agent  to  sell  his  property,  bargains  for  the  disinterested  skill,  dili- 
gence, and  zeal  of  the  agent  for  his  own  exclusive  benefit. 

It  is  a  confidence  necessarily  reposed  in  the  agent  that  he  will  act 
with  a  sole  regard  to  the  interest  of  the  iirincipal,  as  far  as  he  lawfully 
may.  The  seller  of  an  estate  is  presumed  to  be  desirous  of  selling  it  at 
as  high  a  prit^e  as  can  fairly  be  obtained  for  it,  and  the  purchaser  is 
e(iuallv  presumed  to  desire  to  i)urehase  it  for  as  low  a  price  as  he  may. 
The  interest  of  the  two  are  in  conliict.  Emptor  enut  qmun  mhiiinii 
potest;  venditor  vendit  qnam  muxhiv*  potost.  But  if  the  same  party  he 
allowed  to  act  as  agent  for  both,  it  becomes  his  interest  to  have  this 
maxim  reversed,  or  at  least  to  sacrifice  the  interests  of  one  or  both  of 
his  principals  in  order  to  advance  his  own,  by  receiving  double  commis- 
sions.    Hence,  the  law  will  not  permit  an  agent  of  the  vendor,  whilst 


U8A(!KS    A<JAIN«T    I'l'I'.I.K      POIKY. 


4M 


Illiistriilivf  Cases. 


.iiMorocity, 
lis  f:irtn  in 
e  fiiriu  for 
n  liiiu  ami 
!  farm,  and 
usual  coiii- 
laci'il  upiiu 
recover  tlie 
ro  <i,v(n\\\(U : 
ippcUef  and 
w  excl'.aiit^c 
saj^e  aiiionif 
1  estate  Ihcy 
1  each  party 

l('t;-ed  a'j,roe- 
liis  court  hy 
:ide.   <'ai\  lu; 

(t    tlu'   !ll)l)fl- 

l  aofreeuiciit, 

utiiuiod.  art' 

he  lawfully 

rchased,  l»y 

ear  he  (iDii'd 

icncy  of  this 

1  res|)e('t  ti) 

essary  con- 

einploymont 

3d  skill,  (lili- 

he  will  act 
ho  lawfully 
IseUiup;  it  at 
purchaser  is 
as  he  may. 

me  party  lie 
Ito  have  this 
or  both  of 
Ible  commis- 
Indor,  whilst 


that  eraploymont  contiiuies,  to  iussumc  the  essentially  inconsistent  and 
repugnant  relation  of  agent  for  the  purchaser.*  In  a  very  recent  English 
case,*^  the  plaintiff  employed  a  broker  to  purchase  a  particular  ship, 
on  the  basis  of  an  offer  of  i'J),0()0,  or  as  cheaply  as  he  could;  but 
eventually  the  ship  was  purchased  for  i''J,2;')n.  Prior  to  the  sale,  an 
arrangement  had  been  made  between  the  vendor  and  a  broker,  Scott, 
that  if  the  latter  could  sell  the  ship  for  jiiore  than  t'S, ;")()(>,  he  might 
niain  for  himself  the  excess ;  and  it  was  arranged  between  Scrott  auii 
the  defendant,  without  the  knowledge'  or  sanction  of  tlu!  plaintiff,  that 
defendant  should  receive  from  Scott  a  portion  of  this  excess,  and  lu' 
ae(!ordingly  nn-eived  £22'k  part  of  the  excess  over  t'S,")00.  On  dis- 
covering this,  the  plaintiff  brought  an  action  for  money  had  and  nM-eivcd, 
against  the  defi^ndant  for  the  £,'22"),  and  the  Couri  of  <>t:een's  Bench 
sustained  the  action  and  allowed  the  recovery.  In  the  course  of  his 
opinion,  Cockijiun,  C.  J.,  declared  the  law  on  the  sul>ject  to  be  well 
and  comi)endiously  stated  in  Story  oil  Aijency^  (to  which  we  have 
referred),  in  thest;  terms:  "  Indeed,  it  may  be  laid  down  as  a  general 
principle  that  in  all  cjises  Avhere  a  i)ei'Son  is  either  actiuilly  or  construc- 
tively an  agent  for  other  persons,  all  profits  and  advantages  made  by 
him  in  the  business  beyond  his  ordinary  compensation  are  to  be  for  the 
heiulit  of  his  employers."  In  the  case  before^  us,  the  a})i)ellant  tesLitied 
that  he  informed  Cooper  that  the  apptdlee  was  to  pay  him  commissions 
if  the  exchange  was  made.  This  would  probably  prevent  a  recovery 
from  him  by  Cooper  of  such  conunissions,  in  case  they  had  actually 
been  paid  by  the  appellee ;  but  it  does  not  follow  from  this  that  he  can 
enforce  the  contract  against  the  appellee,  and  com|)el  her  to  pay  them. 
The  rule  to  which  we  have  adverted  forbids  the  courts  to  entertain  an 
action  founded  upon  sut-h  a  contract.  Nor  does  it  prevent  the  ajipli- 
cation  of  the  rule  thtit  this  was  an  exchange  of  jyroperties,  and  not  a 
sale  of  the  farm  for  money.  The  retisons  upon  which  the  sale  is 
founded  apply  with  equal  force  whether  Tuoney  or  property,  at  an  ascer- 
tained value,  be  received  by  the  vendor  for  the  property  he  parts  with. 
It  is,  perhaps,  possible  for  the  same  agent  to  serve  both  parties  to  such 
transaction  honestly  and  faithfully,  but  it  is  very  diflbajlt  to  do  so,  and 
the  temptation  to  do  otherwise  is  so  strong  that  the  law  has  wisely 
interposed  a  positive  prohibition  to  every  such  attempt.  As  said  by 
Judge  Stoet  in  one  of  the  sections  of  his  book  on  Ayency,  already 
referred  to,  "  it  is  to  interpose  a  preventive  check  against  such  tempta- 


■  -^loiy  on  Ajr.,  §§  210,  211;  Scliwarl/.i!  v. 
Yeai  ly,  31  Md.  278. 


-  IvrorrisDii  e.  TiKjmimoQ,  9  Luw   Uep.  480. 
•■'  Sod.  211. 


98 


4.1 


WIlKN     IN    COM-Mi   T    WITH    »  <»Mi;  \<    IS,    i;  r« 


f  '. 


(i«  tKTIkI    KlilfS. 


tionH  and  Hcducfions  that  ii  positive  prohibition  has  boon  found  to  he 
the  Houndost  |)oIicy,  ('nc.nini<ir(!d  i>y  tho  purcsl  picci'pts  of  ('Iiristiiniily." 
Aftor  wliiit  luis  l)('(!n  s;iid,  it  is  hardly  ni'cu'ssary  to  add  that  Uic  iisicii 
or  custom  rcliiid  on  cannot  avail  th(>  appellant.  A  usatri  in  »(iiitr;ivfii- 
tion  of  a  wcll-sijttlcd  and  sahjtary  rule  of  law  carniot  In;  siistaint  d  1)\ 
courts  of  justice.  Tin;  appellant  is,  therefore,  not  entitli  d  to  rceowi 
on  ell  her  {ground  upon  wliicli  he  bases  hiselaini.  The  ruliiiii,s  ,.t  tiiccMiirl 
rcjcetin!^  Iiis  two  prayers  accord  with  the  vi(!ws  above  expressed  :  !iii<i  ii 
follows  that  error,  if  there  be  any,  in  grant ini>;  the  appellee's  scf  nnd 
prayer  hivs  rcsidted  in  no  injury  to  the  appellant,  and  the  jiidLMiicnl 
must  bo  aillrnied. 

Jdiiyini'-iil  (tjlrmed 


wu> 


m 


NOTKS. 

§  L'Ofi.  Uoages    inndmisBible  when    repuiornant    to    Express    Contracts. 
Usa^rs  and  ciistoiiis  art'  ncvn-  allowed  to  operate  a'jcainst,  jiii  express  coiitracl. 
Lord  LYNoni'u.sr's  lan;iiiap'  in  BlackcU  \.  Royal  h'xrlHtntff  Assurai'a  Ccntjiatuj, 
"  Usiij^e  may  l)i;  adiiiis-ible  to  oxidain  what  is  doul)tfid,  i»ut  it  is  never  u(iiiii>- 
8il)le  to  eontnidicL  wluit  is  plain,"  states  in  u  very  concise  manner  the  limits  to 
the  ailinission  of  e\  idi  ik  e  of  this  character  in  the  case  of  express  contracts. 
"  No  iksMi;c  or  custom,"  said  Caton,  J.,  in  an  Illinois  case,'  "  can  he  adniiUi'ii 
to  vary  or  conirol  the  express  terras  of  a  contract,  but  they  may  bi'  admitted  to 
determine  that  which  by  the  contract  is  left  undetermined.     The  parties  by  tlic 
contract  may  abro^att;  any  custom,  no  matt^'r  how  ancient  or  uidfdnn,  Imt  .^ucli 
custom  caimot  abrofiatc  the  terms  of  a  contract.     \Vh<!ncver  there  is  a  conilii'i 
the  contra(;l  must  control.    The  reason  why  a  custom   is  allowed  to  he  proved 
for  the  purpose  of  interpreting  a  contract  is  beeaust!  both  parties  an'  sufiposid 
to  have  been  acquainted  with  it,  and  to  have  contracted  in  reference  ti>  it.    Tlif 
custom  does  not  become  a  part  of  the  law  of  the  place,  but  rather  a  part  of  tin 
contracts  which  are  to  be  performed  at  the  place;  and  hence,  if  tlie  u^aiii-  iv 
excluded  by  the  contract,  it  cannot  con.stitute  a  part  of  it."     "  When,"  suvs 
Mr.  Justice  Mili.ku,  "this  [usage]  is  confined  to  establishing  an  iiiiplieil  ion- 
tract,  and  the  knowledge  of  the  usage  is  brouglit  home  to  the  other  i)arty,  tin- 
evil  is  not  so  great.     But  when  it  is  sought  to  extend  the  doctrine  beyoiul  this. 
and  incorporate  the  custom  into  an  express  contract  who.se  terms  are  reduced 
to  writing,  and  are  expressed  in  language  neither  technical  nor  amliiguous,  and, 
therefore,  needing  no  such  aid  in  its  construction,  it  amounts  to  cstablishiiiii  tlie 
principle  that  a  custom  may  add  to,  or  vary,  or  contradict  the  well-exprevse  i 
intention  of  the  parties  made  in  writing.    No  such  extension  of  tlie  doctrine  is 
consistent  either  with  authority  or  with  the  principles  which  govern  the  law  of 
contracts."*     It  h.as   tlierefore  been  held  in  a  large  number  of  cases  tliat  no 


'  Ante,  p.  413. 

^  Dixon  V  Uunham,  14  lU.  39i. 


■•  rarli-li'.ge  c.  Insurance  Co.,  16  Wall.  .!7.V 


rWAOKH    AOAINST    KXPUKSS    AdIlKKM  KNTS. 


4;i.') 


rjirricr  anil  ('lixlinncr. 


ouiul   tit  I'f 
ristiimity." 

it  llu-   USil'il 

I  coiitriivcii- 

iistiiini'tl  l'> 
I  to  r((!(>vfi 

oi  till'  ('"'ii''' 

ssctl ;  ini'l  ii 

U'.c'H    Sr<n||(l 

lie  jutl'iiiH'nt 
/  ojjinued 


1    Contracts. 

Lprcss  conlrait. 

raiici  Cohii'diiih 

|\s,  never  U(iii>i>- 

er  i\w  l""'^'* '" 
press  coi)tv:i<is. 

;au  he  iidiiiilti'il 
y  be  iidmitted  to 
u;  parties  by  tin- 
lifon.i,  I'll'  ^"'''' 
„.,v  is  a  coiulift 
ed  to  iH'  I'rov''"' 
ies  !in'  suri'i"**'' 
cnc.i;  to  it.    'l'''^ 

ilCr  11  IKH't  ot   tlli 

if  the  ">;i'-'-  '^ 
i'NVlu'ii,"  sa\> 

an  iini'l'*"^  ''""' 
other  piii'ty-  ""■ 
,uc  l)i'y«'i-'»  "'i^' 
,rins  are  reilucfd 

amWifliio"^'  '""'' 
cstablisliinti  ""' 
e  wen-i'Kl'i'''-^e '. 

{  tlio  doctrine  is 
overn  the  law  of 
of  cases  tl>at  no 


i 


iisii<?n  or  custom  repimnanl.  to  th(^  terms  of  mi  express  ciontraet,  eitlier  \vritt<'ii 
or  verbal,  is  iidmissibit!  to  eoiitrol  or  contradict  ttu!  terms  of  siieli  conlnutt. 
Many  of  tlie.sc  rases  are  in'ecoiicilable,  the  conllici  arising  from  a  diflen'net^  ol 
opinion  on  tli'  (urt  of  individual  )iid'4<  s  as  to  wlicihcr  a  parli<;ijlar  a-  iii'-  did  or 
(lid  not  contradict  the  plain  imitorl  of  the  express  a'^reemeiit  or  \viiit(  n  instru- 
ment. Thus,  (lie  jiKJL'ment  of  the  Court  of  Kxelie(|uer  hi  Hldc.kcU  v.  lioi/d/ 
hJ/rhiviyf.  Ansiirmux  Compami  -  waH  spoken  of  with  disapi<roval  by  the  ('mirt  of 
('(iinmon  Pleas  in  lliunfrcij  v.  Ihilc,  and  an  examination  of  the  cases  in  the 
s:,cc' <'din'4  se<'lions  of  this  chapter'  will  show  that  the  (picsiion  helon;  the 
court  has  not,  in  many  instances,  been  tested  by  very  certain  rules.  In  our 
opinion,  \\w  true  test  us  to  wh(;Lher  u  usai;(!  is  icj)u<^nant  to  llie  contract  was 
laid  down  by  I^ord  (-'ami'mi-.u.  in  the  ease  last  cited,  where;  he  sai<l  tliiit,  to  fall 
witliin  the  exct^plion  of  repii;;iiancy,  tho  inridrtU  miint,  he  sitrli  rj.s,  if  rr/ni.'^i  l  in  tin 
writtiii  contract,  iivhtid  mukf  U  inscnsiftlf  or  iiiconsi.ntint.  Mr.  Mkowm:,'  referring 
to  Addison's  advii:t;  to  yoiinji  authors  indul'^in.;  in  meta|>hors,  to  ilrst  see 
wticther  they  are  capable  of  bciim'  painted,  considers  it  a  safe  rule  for  tlio.se 
wiio  have  to  dceide  whellicr  a  usau,('  will  altacdi  an  incident  to  an  express  con- 
triict,  or  not,  to  ascertain  whether  they  can  be  written  down  together  without 
producing;  contradiction  or  nonsenst;. 

In  the  next  Hcetions  will  be  found  those  usages  and  customs  which  have  been 
rejected  by  the  courts  on  account  <d  their  repniinaney  to  expre-s  contracts  in 
different  relations  and  ocenpations.  It  will  be  seen  that  the  rule  above  stated 
h;is,  in  many  instances,  not  been  applied. 

§  207.  Usages  repugnant  to  Express  Conf -acts  -  Carrier  and  Customer.  - 
The  express  contrail  between  carrier  and  customer  caiinol.  be  varied  by  evi. 
deuce  of  usu^e.  Thus,  the  meaniii}?  of  the  letters  "C.  ().  I).,"  in  an  exi)re.ss 
receipt,  bcin?^  so  \v»ill  known  to  the  public,  an  atleinttt  in  a  New  York  case  to 
jjive  them  by  usaije  u  different  meanin;^  was  unsuccessful.^  In  SiniiiioHx  v. 
Luw,''  under  a  bill  of  hiding  for  the  (^arriau'c  of  treasure  from  San  Francisco, 
via  the  Isthmus,  to  New  York,  which  made  the  carrier  liabli;  as  such  for  its 
transportation  across  the  Isthmus,  evidence  was  held  inadmissible  to  prove  that 
ii  was  the  custom  of  shippers  of  treasure  to  insure  it,  uiiainst,  risks  upon  the 
Isthmus,  or  that  there  was  a  custom  by  which  the  carrier  of  f?old  refused  to 
assume  any  risk  of  transportation  across  the  Isilimus.     This,  of  course,  is  but 


I  Boiirtsh  ■('.  Kox,  23  Me.  90;  llinton  v. 
liOcke,  .1  Hill,  l.'tT;  Bl(!vlii  v.  Now  Kngland 
Screw  Co.,'2:J  How.  I'M;  KxchanRc  Hank  »'. 
Oulcinan,  1  W.  Va.  ili);  Savings  Bank  i'.  Ward, 
100  U.  S.  ItW;  Knox  o.  Tlio  Ninetta,  <,'iabbe, 
5;U;  Siielliiig  v.  H.-xll,  107  Muss.  V.U;  Dutch  r. 
Harrison,  37  N.  Y.  .S.  (,'.  (T.  &  (;.)  3(»;;  .Mer- 
cantile Ins.  Co. ».'.  suite  Ins.  Co., '2D  Harb.  319: 
Krwin  «.  Clark,  13  Mich.  10;  Mryan  v.  Spur- 
gin,  i>  .Sneed,  CSl;  Kay  v.  Strn'vn,3-2  111.  295; 
Corbott  V.  Underwood,  *{  111.  32t :  Sncars  v. 
Wai-I,  48  Ind.  .Ml ;  Hafert  v.  Sen>^'f,'iii^,  '.() 
Ind.  l'.!.j;  Bellf.  Smith,  iW  .Mass.  (117;  Macom- 
Ijur  c.  I'arker,  1;!  I'ie.k.  1.S2;  Stiil:/,  r.  L,fki!, 
i'<  Mil.  o6'2;  Cooke  v.  Kngl  >iid,  27  !Md.  U; 
Bradley  u.  Wheeler,  4  Robt.  18;  44  X.  Y.  496; 


Bank  of  Commerce  v.  Hissell,  72  N.  Y.  015; 
Chandler  r.  I5(ddeii,  18  .lolins  l.")7;  I'arson^ 
V.  Miller,  15  Wend  .Vil ;  Wadsworlli  r.  Ole.olt. 
«  N.  Y.  M;  Lane  r.  Bailey,  47  Barb.  3'.i.") ; 
Holmes  I'.  I'etlingill,  1  Hun,  .Uti;  Miie.keii/u- 
i;.  Schmidt,  22  Am  L.  Ueg.  US;  'I'll wing  /', 
Great  Western  Ins.  Co.,  HI  .Ma-s. ',);:  Vail  c. 
Rice,  .^  N.  Y.  W>;  Farmers',  etc.,  Bank  r. 
Logan,  74  X.  Y.  5«S;  Muguire  o.  Wood.side,  2 
Hill.  59. 

-  Ante,  p.  413. 

'  I'oH,  §§  207-215. 

*  Browne  on  Usages  *  Customs,  -J.t. 

■'  Collenilc  V.  Dintuiore,  .Vi  N.  V.  21.0. 

«  8  Bosw.  213;  3  Keyea,  217. 


436 


WHEN    I\    rONFI.ICT    WITH    CONTRACTS,   KTC. 


Contracts  of  Caniaute. 


w  ■■: 


an  illustration  of  the  rule,  discnssed  at  Icnjrth  elsewhert;,  that  a  usage  cannot 
1)0  set  up  to  contradict  tliu  terms  of  a  contract. 

Where  the  law  has  attaclied  a  certain  meaning  to  a  terra  in  a  bill  of  lading 
evidence!  of  a  custom  to  include  within  the  term  something  additional  is  not 
admissible.'  Thus,  in  The  Reeside,^  Mr.  Justice  Story  refused  to  admit  evi- 
dence' of  a  custom  among  ship-owners  that  the  exception  of  "  dangers  of  the 
seas,"  in  a  bill  of  lading,  extended  to  all  losses  excei)t  those  arising  from  tlicir 
neglect.  In  like  manner,  the  words  •*  perils  of  the  s(\is  "  having  been  judicially 
foiistrued  not  to  cover  an  injury  to  a  cargo  by  rats  or  other  vermin,'  it  was 
properly  ruled  in  Aymer  v.  Astor,*  though  by  a  divided  court,  that  evidence  of 
mercantile  usage  and  understanding  at  New  York  and  New  Orleans  was  not 
admissible  to  show  that  injury  by  rats  was  included  in  the  exception  of  "  jn  rila 
of  the  seas  "  in  a  bill  of  lading.  And  a  loss  by  an  accidental  fire  not  being  wiihin 
this  phrase,^  a  custom  to  include  it  therein  is  subject  to  the  same  objection. 
But  it  is  nevertheless  held  in  Alabama  that  a  carrier  may  show  by  parol  evidence 
Ihat  an  exception  of  the  "dangers  of  the  river,"  as  embodied  in  a  bill  of  ladinsi, 
by  usage  and  custom  includes  dangers  of  fire.'  But  the  decision  in  Savipson  v. 
Oazzam,^  and  other  Alabama  cases,  that  the  words  *•  dangers  of  the  river,"  in 
a  bill  of  lading,  may  be  shown  by  custom  and  usage  to  include  d;iiigers  by  liii', 
(hough  followed  in  subsequent  cases  in  the  same  State  whore  tlie  identical  <iurv- 
lion  was  presented,  has  been  carefully  restricted  in  its  application,  the  court 
being  evidently  unwilling  to  extend  the  principli^  in  the  least.  Therefore  it  li;is 
been  held  by  the  same  court,  in  actions  against  carriers  for  tin-  non-delh-ery  of 
goods  upon  bills  of  lading  containing  only  the  above  exception,  tliMt  eiidcnco 
of  a  custom  among  steamboatmen  to  ascend  the  river  as  higli  as  the  watir 
permits,  and  then  land  the  cargo  and  deposit  the  goods  in  warehouses  there,'  or 
exempting  them  from  liability  for  a  loss  caused  by  tlie  forcible  and  illegal  scl/ure 
of  the  boat  by  a  body  of  armed  men,  without  fault  or  neglect  on  the  part  ol  the 
oHicers  or  crew,  is  inadmissible.'"  Where  a  bill  of  lading  contained  the  wmiLs, 
"  with  shii)per's  reconsignment  option,"  evidence  that  hy  usage  the  option  was 
e-xerciscd  by  the  consignee  also,  was  held  incompetent." 

So,  where  a  carrier  contracts  to  transport  property  in  a  certain  way,  a  failure 
to  follow  his  express  contract  or  directions  will  amount  to  a  deviati  n,  fur 
which  he  will  liable,  and  which  will  not  be  affected  by  a  custom  on  tlie  part  of  the 
carrier  to  follow  tlie  course  adopted  by  him  in  the  particular  case.'-  Tims,  on 
ilic  receipt  of  an  anclior,  with  directions  to  deliver  at  the  consignee's  place  of 


>  LawBon  on  Car.,  §  125. 

-  2  .Suniii.  51)7.  And  -eo  IJaxter  v.  Leland, 
Abb.  Adin.;m. 

a  The  Isiibellii.s  lton.139;  Kiiy  v.  Wheeler, 
;!()  L.  J.  ((;.  I'.)  1«0;  I..  11.  2  U.  P.  UOi;  Lav 
cioni  r.  Drury,  \i>  Jur.  1021;  8  Kxch.  IGC; 
The  Miletus,  5  IMatchf.  aSH. 

*  ec^ow.  26(5. 

■'  I.UW80U  on  Car.  240,  §  165;  Gilraoro  v. 
Carmen,  I  Smed.  A  M.  279;  Merrill  t>.  Aroy, 
;{  Ware,  215;  Cox  v.  Peterson,  30  Ala.  608; 
Union  Mutual  Ins.  Co.  v,  Indianapolis,  etc., 
U.  Co.,  1  Disney,  480. 


'■  Gan-ison  v.  Memphis  Ins.  Co.,  19  How. 
;U2. 

'  Hibler  v.  McCartney,  31  Ala.  501 ;  s,un|i 
son  r.  Gazzam,  6  Port.  123;  Kzell  v.  .Mill(r,(i 
Port.    .107;     Ezoll     v.   English,  G    Port.  ;;o7, 
;!11;    MeClurc  v.  Cox,  32  Ala.  617;  Jones  t'. 
Pitclicr,  32  Stew.  &  P.  135. 

><  ()  Port.  123. 

"  Cox  i:  Peterson,  30  Ala.  608. 

"'  Itooii  V.  The  Kolfast,  40  Ala.  184  (over- 
ruliii;,'  Steele  v.  McTyer,  31  Ala.  667). 

"  McGovern  v.  ili!i.s-.eiibuttel,  H  Iteii.  4«. 

<'J  Hutch,  on  Car.,  $  310,  and  cases  cited. 


:rV'il 


MAKITIME    CONTKACT8. 


i;57 


Terms  ciiniiot  be  Altert'd  by  Usai^e. 


isage  cannot 

ill  of  liidiuo;, 
itioual  is  not 
to  admit  evi- 
iinscrs  of  the 
in;4  from  their 
)ocu  iudici.'illy 
ermin,'  it  was 
it  evidence  of 
leans  w;is  not 
ion  of  "  perils 
ot  beinii  \vitl\in 
me  objection. 
parol  evidence 
1  bill  of  ladins;, 
I  in  Smnpnon  v. 
i  the  river,"  in 
lan'j;crs  by  tin', 
identical  (|ui-;- 
ition,  the  court 
riierefore  it  lias 
non-delivi>ry  of 
1,  thi'.t  e\idenci! 
;h  as  the  water 
onses  there,'  or 
d  illei^al  seizure 
I  the  part  of  ilie 
ined  the  words, 
i  the  option  was 

in  way,  a  fiiilurc 

deviati  n,  for 

■nthe  part  of  the 

ase.»-    Thus,  on 

j^nee's  place  of 

Iii8.  Co.,  19  How. 

31  Ala.  501;  s;imii 
K'/.oU  f.  Milli'i-.* 
glish,  G   I'orl-   ''"". 
.\lii.  617;  Jo'i«''  ''■ 


Lla.  fi08. 

,  40  Ala.  184  (over- 
31  Ala.  067). 
ibuttel, «  Hei>-  <«• 
0,  and  cases  cited. 


business,  the  oblisation  of  the  carrier  is  not  satisfied  by  a  delivery  at  a  wharf, 
tlthoufih  such  was  his  cnstoin  in  all  similar  cases;'  and  placinir  a  horse  in  an 
open  car,  when  the  owner  ordered  it  to  be  pinced  in  u  clr.sed  car,  will  make  a 
railroad  company  responsible  for  its  loss  or  injury  from  such  clianse,  though  its 
custom  was  to  carry  horse  s  in  either  kind  of  car  indiscriminately.^  An  instruc- 
tive case  on  this  point  is  Rasin  v.  Steamship  Compamj?  Tin;  defendant's  anient 
at  Havre  issued  a  bill  of  ladins:  coiitaininji  the  following  clause:  "Received  in 
and  upon  the  steamship  called  Shamrock,  now  lyinj?  in  the  port  of  Havre,  and 
bound  for  Liverpool,  eij;lilefn  cases  of  merchandise,  to  be  transsliipped  at  Liver- 
pool on  board  the  Liverpool  and  Philadelphia  steamship  City  of  Manchester,  or 
other  steamship  appointed  to  sail  for  Philadelphia  on  Wednesday,  the  sixth  day 
of  September,  and  failing'  shipment  by  her,  then  by  the  first  steamship  sailing 
after  that  date  for  Philadi'phiii."'  Another  of  the  dof(!iulant's  steamships,  the  City 
of  Philadelphia,  was  to  sail  from  Liver[)ool  to  Phiiudelpliia  on  the  ;^Oih  of  August, 
and  1."  happened  that  the  cases  of  nierih.indise  uiiexpeclcMlly  arrived  ;it  the  former 
port  before  that  day,  and  therefore  the  defendant  shipperl  a  portion  of  the  cases 
on  the  City  of  Philadelphia,  reservim:  tin;  remainder  for  the  City  of  Manchester. 
The  goods  sent  by  the  latter  steamshi|)  arrived  at  Philadelphia  in  due  .season  and 
in  good  order,  but  those  sent  by  tht;  formcn"  were,  on  accouiit  of  the  wreck  of  the 
City  of  Philadelphia,  lost,  Inanaction  to  recover  the  value  of  ihe  y;oods  lost,  the 
defendant  set  up  a  usage  on  the  part  of  shiti|iers  and  slc-nn-hip  companies  to 
have  goods  shipped  at  the  earliest  time  and  by  the  first  vessel  sailing  after  their 
receipt.  Bnt  the  defendant  was  held  liaole,  Mr.  Justice  (iuiKu  saying  that  the 
express  contract  must  prevail.  Where  wheat  was  to  be  transi)orted  by  the 
carrier  to  New  York  on  account  and  order  of  the  plaintiff,  and  ihe  bill  of  ladiuir 
contained  tlic  memorandum,  •'  Notify  K.  S.  Hrown,  N.  Y.,"  and  the  <arrii'r  deliv- 
ered the  wheat  to  Urown  instead  of  to  the  plaintiff,  it  was  held  not  admissible 
to  show  that  by  the  custom  of  New  York,  under  such  bills  of  lading,  property 
was  rightly  delivered  to  the  person  to  be  notili-d  '  In  a  very  rec<!nt  KnglisU 
case,  the  defendant  chartered  a  vessel  from  the  plaintiff  for  a  particular  voyage. 
In  the  charter-party  it  was  agreed  that,  after  loading,  the  vessel  should  proceed 
to  a  safe  port  in  the  United  Kingdom,  or  on  the  continent  between  Havre  and 
Hamburg,  both  ports  included,  as  ordered,  or  "  so  near  thereto  as  she  could 
safely  get,"  and  deliver  the  i-argo  on  being  paid  freight.  The  vcn.scI,  on  being 
ordered  for  Hamburg,  sailed  for  that  port,  but  on  account  of  her  draught  of 
water  she  could  not  get  neap'r  to  Hamburg  than  Stade,  at  which  place  the  plain- 
tiff offered  to  deliver  the  cargo,  or  >o  much  of  it  as  would  ligliien  the  ship  and 
enable  her  to  proceed.  Th-  defendant  refused  to  accept  any  of  the  cargo  at 
Stade;  and,  in  order  to  earn  the  freight,  the  plaintiff  discharged  part  of  the 
cargo  into  lighters,  in  which  it  was  conveyed  to  Hamburg,  and  there  delivered 
to  the  defeiKlant's  agent.  The  vessel,  i)eing  thus  li'j.htened,  ari'ived  at  Hamburg, 
and  delivered  the  remainder  of  the  cargo.  The  action  was  for  l)reach  of  the 
charter-party  in  refusing  to  accipt  any  of  the  cargo  at  Stade,  and  the  plaintiff 
laimed  as  damages  the  expense  incurred  by  him  for  lighterage  from  Stade  to 


% 


'  Warden  i'.  Rlovrillyaii,  2  Esp.eOl. 
'  SagtM-  V.  I'ortsnioiuh.  etc.,  It.  Co.,  31  Me. 
t28. 

»  3  Wall.  Jr.  229. 


<  Bank  of  Commerce  v.  UisBCIl,  72  N.  Y. 
616;  FaniiiMs,'  oio..  Hank  t^.  Krio  R.  Co.,  7'i 
N.  Y.  188. 


4as 


WHKN    IN    (^OM'LICT    WITH    OOX TltAGI'S,  KVr, 


Maritime  Contnicts — Insdrance  Policies. 


fU 


ii    I 


J    ( 


Hamburg.  The  defendant  pleaded  a  custom  of  the  port  of  Ilainburij,  iiy  nhich 
he  was  not  bound  to  accept  at  any  place  but  Hamburg.  On  demurrer  to  this 
plea,  the  Court  of  Appeals  held  that  tiie  custom  of  Hamlxiri;  could  not  ovciiiiie 
the  express  agreement  in  the  charter-party,  and  that  the  plaintiff  was  eulitled  to 
tlie  lighterage  expenses.' 

In  Phillips  V.  Briard,^  the  declaration  stated  that  by  charter-party  it  was  airrced 
between  the  charterers  and  the  owner  of  a  ship  called  the  Maggie,  being  in  tlie 
London  docks,  that  the  ship  would  load  a  cargo  and  tlierewith  proceed  to  Hon™ 
Kong,  and  deliver  the  same  on  being  paid  freight,  "  tlie  sliip  to  be  conveyed  to 
the  charterer's  agents  in  Cliina  free  of  commission-on  the;  cliarter ;  "  that,  aeeiird- 
ing  to  the  custom  of  merchants  in  London,  whenever  a  sliip  chartered  in  Lomlan 
for  China  is  agreed  to  be  conveyed  to  the  charterer's  agents,  whether  consimiud 
free  of  commission  on  that  charter  or  not,  it  is  the  right  and  duty  of  such  agents, 
as  the  consignees  of  the  ship,  to  procure  a  cliarter  or  cargo  for  the  ship  for  any 
voyage  from  such  port,  and  they  are  entitled  to  be  paid  the  usual  broker's  com- 
mission on  the  amount  of  the  freight  payable  under  such  contract,  but  in  case 
the  owners  of  the  ship  procure  a  charter  or  a  cargo  for  the  ship  for  the  con- 
signees, the  consignees  are  entitled  to  the  broker's  commission  on  any  Ir .1^:111. 
payable  under  such  charty-party,  unless  such  right  is  excluded  by  siiicial 
contract;  that  although  the  ship  was  loaded,  and  arrived  in  China,  and  tlie 
plaintiffs'  agents,  as  consignees,  perfortned  their  duty  free  of  coiiiiui^sion  on 
the  outward  voyage  and  cargo,  anil  were  ready  to  procure  a  charter  or  a  cargo 
from  Hong  Kong,  and  although  the  plaintiffs  performed  all  conditions  precedent, 
the  defendant,  without  any  default  of  the  plaintiffs'  agents,  procured  a  cargo  for 
voyage  from  Hong  Kong,  and  without  any  such  default  procured  a  cargo  to  the 
United  Kingdom,  the  usual  broker's  commission  on  which  amounted  to  a  larL,'e 
sum,  yet  the  defendant  has  not  paid  or  allowed  the  same  to  the  plaintiffs  or 
their  agents,  whereby  the  plaintiffs  were  obliged  to  pay  their  agents  a  coniiien- 
sation  in  respect  thereof.  It  was  held,  under  these  circumstances,  that  the 
declaration  was  bad,  since  the  custom  did  not  explain  or  annex  an  incident  to 
the  contract,  but  made]|a  new  contract.  "Here,"  said  Pollock,  C.  H.,  "it  is 
sought  not  to  explain  the  contract  by  the  custom,  or  to  add  to  it  some  incideutal 
matter  not  inconsistent  with  what  is  expressed,  but  to  impose  on  the  parly,  who 
has  entered  into  one  contract,  another  and  a  different  obligation,  and  because  he 
has  agreed  to  consign  the  ship  to  the  charterers'  agents  on  the  outward  voyage, 
to  make  him  liable  to  pay  tlie  agents'  commission  on  the  homeward  cargo.  If 
that  could  be  done,  where  is  it  to  stop?" 

Where  a  railroad  company  agreed  to  transport  a  certain  quantity  of  hay,  no 
time  being  mentioned,  for  a  certain  price,  a  custom  of  railroads  for  all  siu  eial 
rates  to  expire  at  the  end  of  each  year  was  rejected.''  And  an  express  oiiinict 
by  the  sender  of  a  message  with  a  telegraph  company  cannot  be  vari  •'  by  the 
usage  of  a  local  office.* 


§208.  Same  —  Insurance  Policies.  —  Where  a  policy  was  upon  "the  body, 
tackle,  apparel,    ordnance,    munition,  boat,  and  other  furniture  of  the  ship 


'  Hayton  v.  Irwin,  28  Week.  Rep.  665. 

2  1  Hurl.  AN.  21. 

3  Martin  v.  Union  Pacific  R.  Co.,  1  Wy. 
Ter.  143. 


*  Grinncll  v.  Wegtern  Union  Tel.  Co.,  tr> 
ManB.  229. 


C0NTUACT8    OF    INSURANt^K. 


4;i9 


Ti  Tins  cannot  be  AiUTLiI  by  l'.sii>if. 


ir£i,  by  which 

urror  to  this 

not  ovcri'iile 

as  entitled  to 

it  was  atrroed 
,  Ijcin;:  in  the 
icocd  to  Hoii;» 
e  convcyc'l  to 
'  that,  accorrl- 
red  in  Loinlon 
,h(!r  consiniiod 
if  such  aiiciits, 
It'  ship  for  any 
l)roker's  coiu- 
2t,  but  in  case 
)  for  the  con- 
on  any  Ir.'iu'ht 
id    by  siHcial 
]liina,  and  the 
oninii^siou  on 
rtor  or  a  cargo 
ons  precedent, 
red  a  car^o  for 
a  cari;o  to  the 
ted  to  a  larije 

plaintiffs  or 
aits  a  eonipen- 
nces,  that  the 
an  incident  to 

C.  IJ.,  "it  is 
onie  incidental 
the  party,  who 
md  because  he 
tvvard  voyage, 
ard  caru;o.    If 

ity  of  hay,  no 

for  all  sptcial 

press  c.>iili'acl 

vari  ■'■  by  the 

n  "the  body, 
of   the   siiip 

ion  Tel.  Co.,  in 


called  the  Thames,"  Lord  Lyndiiurst  refused  to  admit  evidence  of  a  usaue  at 
Lloyd's  that  boats  sluugoa  the  ship's  quarter  were  not  pi  >teeted  by  such  policy. 
Where  oil  had  been  lost  by  leakajxe,  caused  by  the  violent  labo/inp;  of  the  ship  in 
a  cross  sea,  Lord  Dknman  refu.sed  to  admit  evidence  of  a  mercantile  usajic  that 
tndess  the  cargo  %  as  shifted  or  the  casks  damaged,  imderwrlters  were  not  liable 
for  leakage  as  a  "peril  of  the  sea."^    So,  evidence  is  inadmissible  to  show  that 
the  words  "glass-ware  in  casks,"  in  the  memorandum  of  excepted  articles  in  a 
tire  policy,  according  to  the  common  understanding  of  insurers,  means  such 
ware  in  open  casks  only.''    Where  the  policy  was  on  "the  Swedish  brig  Sophia," 
this  was  held  to  be  a  warranty  that  the  vessel  was  Swedish,  and  evidence  was 
rejected  which  was  offered  to  show  that  the  vessel  was  in  fact  an  American  ship. 
"The  cases  mentioned,"  said  Paukku,  C  J.,  "in  which  tlio  usage  of  trade  has 
been  held  to  control  the  description  of  a  voyage  in  the  policy  are  by  i:o  means 
analogous.    The  underwriter  and  the  assured  are  both  presumed  by  law  to  make 
tlieir  contracts  with  reference  to  such  usages,  and  they  in  fact  make  a  part  of 
the  contract.     But  there  cannot  be  a  usage  by  which  a  warranty  that  a  vessel 
was  neutral  should  be  held  to  mean  that  she  was  not  neutral,  but  only  pretended 
to  be  so."  *    And  so  it  was  said  in  the  Supreme  Court  of  the  United  States,  in  a 
more  recent  case,  in  reference  to  a  usage  as  to  the  rate  of  premium  to  be  paid: 
"Tested  by  these  principles,  the  usage  attempted  to  be  set  up  cannot  he  sus- 
tained.   It  contradicts  directly  the  written  contract.     It  proposes  to  set  aside 
all  that  was  said  about  the  rate  of  premium,  and  substitute  the  discretion  of  one 
of  the  parties  to  the  instrument.     It  goes  upon  the  assumption  that  all  that  is 
written  in  the  contract  which  fixes,  or  ascertains,  or  limits  the  amount  that  may 
be  claimed  for  premium  of  insurance  by  the  company  is  nugatory,  and  that  the 
whole  field  is  left  open,  and  the  power  placed  in  the  hands  of  one  of  the  parties 
exclusively.     No  such  usage  can  be  admitted  thus  to  contradict,  vary,  and  con- 
trol this  contract."  *    And  in  a  subsequent  case  in  the  same  court,  where  the 
policy  read,  "  To  a  port  in  Cuba,  and  at  and  f  r  >m  thence  to  a  port  of  advice  in 
Europe,"  evidence  of  a  usage  for  such  vessels  to  stop  at  two  porLs  in  the  island 
was  held  incompetent,  because  repugnant  to  the  language  of  the  contract.'    In 
Alabama,  where  a  policy  stipulated  that  the  risk  on  the  goods  was  to  commence 
"from  and  immediately  following  the  loading  thereof  on  board  the  Kail-vessel  or 
bo'it  at  New  Orleans,"  it  was  ruled  that  usage  could  not  render  the  insurer 
.  t.ble  for  a  loss  while  on  the  wharf  awaiting  transportation,  or  while  being  car- 
ried overland  by  rail.'     In  Hall  v.  Jansoiiy'*  which  was  an  action  on  a  policy  of 
marine  insurance  in  the  ordinary  form,  in  which  the  interest  was  declared  to 
be  "on  money  advanced  on  account  of  freight,"  and  the  court  held  that  the 
interest  was  in  the  ship-owner,  and  that  it  became  subject  to  a  general  average 
contribution,  a  plea  stating  a  custom  of  London,  where  the  policy  was  made, 


'  lilankctt  V.  Royal  Exchange  Assur.  Co., 
i  Crump.  &  J.  '^4  ;  ante,  p.  413. 

-  Crofts  V.  Marsliall,  7  Car.  &  V.  .V)7 ;  Uabay 
e.  Lloyd,  3  Ham.  &  Ureas.  793. 

'  Bend  v.  Ueorgia  Ins.  Co.,  Aug.  on  Ins., 
§2.5. 

*  Lewis  t).  Thatcher,  16  Mass.  431. 

<>  luHurauce  Co.   v.  Wright,  1  Wall.  456. 


And  see  King  v.  KiUerpriso  Ins.  Co.,  45 
Ind.  43. 

'^  lleiirne  v.  Marine  Ins.  Oo.,  20  Wall.  488. 
And  sec  tSccconib  v.  Provincial  Ins.  Co.,  10 
Allen,  305. 

■  Smith  V.  Mobile  Nav.,  etc.,  Co.,  30  Ala. 
167.  And  see  Hare  v.  Harstow,  8  Jur.  !C28; 
Ilall  V.  Juuson,  4  Kl.  &  1(1.  500. 

>*  4  LI.  &  III.  SOO. 


440 


WHKN    IN    CONFLICT    WITH    CONTKACTS,  ETC. 


r  I' 


\}i  \ 


% 


Policies  of  Insurance. 


U'i 


!^ 


that  insurance  upon  "money  advanced  on  account  of  freight"  should  not  be 
liable  for  a  gener.il  average  was  held  bad,  the  custom  alleged  being  inconsistent 
with  the  words  of  the  policy. 

Where  a  policy  is  issued  covering  a  certain  class  of  risks  at  a  stipulated  pre- 
iniuni,  a  usage  to  abate  a  portion  of  it  cannot  affect  the  contract.'  Ami  so,  to 
an  action  on  a  policy  against  a  fire  company  for  the  amount  of  the  loss  insiind 
by  it,  a  custom  of  the  company  to  conlribute  and  pay  on  such  policy  only  in  pm. 
portion  to  what  is  paid  on  the  same  goods  insured  in  another  company  is  no 
defence.^  Where  a  policy  insured  a  wharf-boat  "lying  at  the  wharf  at  the  city 
of  Evanaville,  Indiana,"  it  was  not  competent  to  prove  a  custom  prevailing  at 
Evansville  of  removing  property  of  the  character  of  that  insured  from  that  i)laco 
to  a  neighboring  ice-harbor,  for  safety  during  the  season  of  running  ice.'  TIm' 
words  "  free  from  average,"  having  a  certain  and  well-settled  meaning,  c.unioi 
be  construed  by  the  public  or  the  officers  of  insurance  companies  as  denoiin- 
something  different  from  their  general  acceptation.*  And  evidence  of  com- 
mercial Usage  is  not  proper  to  show  tliat  a  policy  executed  in  blank  is 
e(|uivalent  to  a  policy  "for  whom  it  may  concern."  *  Where  a  policy  ohliires 
the  insurer  to  pay  the  value  of  the  net  freight,  a  usage  to  pay  two-lliinU 
of  the  gross  freight  is  bad."  In  Van  Alstyne  v.  uEtna  Insurance  Coniji'ii'ii,' 
the  owner  of  a  canal-boat  procured  a  policy  of  insurance  of  the  defemliiit 
on  his  boat  for  the  sum  of  $1,000,  the  policy  providing  that  it  slionli! 
become  void  if  any  other  insurance  should  be  made  upon  the  boat.  Subse- 
quently, he  procured  another  policy  to  be  issued  upon  the  boat  by  another  eoni- 
pany.  In  a  suit  against  the  first  company,  they  set  up  the  condition  as  to  "  other 
insurance."  It  was  held  that  evidence  was  not  admissible  to  show  an  estab- 
lished custom  to  take  out  what  is  called  a  "trip-policy,"  whereby  a  party 
desiring  to  navigate  his  vessel  beyond  the  points  permitted  in  his  yearly  or  time- 
policy  takes  out  a  policy  for  Mie  particular  trip  he  desires  to  make;  that  aedud- 
ing  to  the  custom  tlie  time-policy  is  suspended  during  the  life  of  the  trip-policy, 
and  that  such  a  policy  is  not  considered  as  "  other  insurance  "  in  the  sense  these 
words  were  used  in  the  first  policy  —  such  a  usage  being  in  direct  hostility  to  the 
express  provisions  of  the  contract.  Where  a  marine-insurance  company  boinid 
themselves  to  pay  all  damage  to  the  property  insured  arising  from  "  the  perils 
of  the  sea,"  it  was  held  incompetent  for  them  to  prove  that,  "  by  the  established 
usage  of  trade  in  the  port  of  New  York  and  other  ports,  the  master  of  the  vessel 
is  in  all  cases  responsible  for  any  damage  sustained  by  the  goods  deli\  end  by 
him  to  the  owner  or  consignee,  unless  there  has  been  an  actual  survey  made  on 
board  tlie  vessel  by  the  wardens  of  the  port  or  other  officers,  a\id  on  such  snrvev 
the  surveyors  shall  have  found  that  the  goods  were  properly  stowed,  and  were 
damaged  on  the  voyage  by  the  perils  of  the  sea;  and  that  by  a  similar  usauv  ;i> 
between  the  assurers  and  the  assured,  the  survey  so  made  by  tlie  wardens  is 
a  document  indispensable  to  be  produced  in  onler  to  charge  the  uiulerwriters, 
and  that  the  preliminary  proof  is  deemed  insulllcient  unless  such  document  be 

>  St.  Nicholas  Ins.  Co.  V.  Mercantile  Mutual  «  Bargett  v.  Orient  Mutual   Ins.   Co.,  ;i 

Ins.  Co. ,  5  Bos w.  2:58.  Bos w.  385. 

-  LnitoinuB  v.  Farmers'  Mutual  Ins.  Co.,  3  •'■  Turner  v.  Burrows,  6  Weiiii.  5tl ;  s.  c,  S 

Hou^t.  2M  Wend.  Ii4. 

'<  Franklin  Ins.  Co.  v.  Huiniibrey,  65  Ind.  <>  McUregor  v.  Insurance  Co.,  1  Wash.  C. 

643.  Ot.  39. 

'  U  Hun,  360. 


:(. 


<ONTUAC;rh    AND    UsAOKS. 


441 


lotild  not  be 
inconsistent 

ipulatcd  pre- 
Aiui  so,  to 
loss  instii-f(l 
r  only  in  pm- 
•nipany  is  no 
f  at  the  city 
previiilinir  .it 
»in  tliiit  place 
IS  ice.-''    Tlir 
minjj,  cannot 
>  as  (ii'noiin'_ 
ncc  of  com- 
in    i)lank   i< 
olicy  ol)li!.'(s 
y   two-tiiinl- 
ze  ComiiKii'i,' 
he  defendant 
it    it   siionlu 
•oat.     .Siihse- 
anotiier  coni- 
as  to  "  otiier 
w  an  cstal)- 
vl)y  a  party 
irly  or  tinie- 
tlial  aceiu'il- 
trip-policy, 
sense  these 
stilily  to  tiie 
npany  l)onn(l 
"tlie  perils 
eslai)lisiie(1 
of  tlie  vessel 
delivered  l)v 
vey  made  on 
sncli  snrvey 
'd,  and  were 
ar  usaii'e  a> 
;  wardens  is 
ndcrwriters, 
)CiiiiU'nl  be 

\\   Ins.   Co.,  ;i 

nd.  51 1 ;  .s-.  c.  * 

:o.,  1  Wasli.  0. 


Landlord  and  Tenant  —  Contracts  of  llirin;;. 


established  as  part  of  it."  Sneh  a  condition  wonld,  it  was  clear,  have  varied  the 
le<;al  obligations  of  the  defendants  as  ascertained  by  the  plain  language  of  the 
policy.' 

§201).  Same  —  Landlord  and  Tenant.  —  The  legal  right  of  a  landlord  under 
an  express  contract  for  a  time  certain  cannot  be  evaded  by  a  custom.-  And  if  .i 
tenant  should  agree  in  his  lease  that  the  landlord  was  to  have  the  waygo.;i;i 
crop,  the  custom  of  the  country  giving  it  to  the  tenant  would  not  be  allowed  to 
prevail  against  the  express  contract.'  Where  parties  agree  to  leav(!  a  mine  "  in 
good  working  order,"  a  custom  among  miners  to  remove  the  pillars  and  su|i- 
ports  is  inadmissible.* 

§210.  Same — Contracts  of  Hlriner.  —  Where  a  contract  of  hiring  is  for  a 
term  certain,  a  cust,om  of  the  trade  for  the  master  or  the  servant  to  determine 
it  at  any  time,  without  notice,  is  inadmissible  to  control  the  contract.-"  So, 
where  a  contract  is  entered  into  under  which  one  is  to  work  for  another  for  one 
year  at  certain  wages,  a  usage  in  the  place  by  which  either  party  may  terininale 
contracts  to  labor  for  a  given  time  at  will,  without  assigning  any  cause  for  so 
doing,  is  incompetent."  Usage  is  not  admissible  to  show  that  a  stipulation  in  a 
contract  of  l\iring  that  the  hirer  was  to  "  lose  the  negro's  lost  time,"  related  to 
time  lost  by  sickness  or  running  away,  and  not  to  time  lost  in  consequence  of 
his  death.'  So,  where  one  hired  frotn  another  a  slave,  stipulating  that  he 
should  be  employed  in  cutting  cord-wood,  "  and  for  no  other  purpo.sc,"  and 
while  so  employed  he  put  him  to  assist  in  the  removal  of  cord-wood  in  a  boat 
and  on  rafts,  whereby  he  was  drowned,  an  offer  to  prove  that  "it  was  the  cus- 
tom, and  considered  part  of  the  business  of  hands  employed  in  cutting  cord- 
wood  on  th(!  Mississippi  Kiver,  to  save  tlie  wood  by  taking  it  to  the  highlands, 
when  n(;cessary,  in  boats,"  was  rejected."  Where  a  cooper  covenanted  "to 
instruct,  or  cause  to  be  instrnc^ted  in  the  trade  of  a  cooper,"  an  apprentice 
indentured  to  him,  a  custom  tor  coopers  to  send  their  apprentices  on  whaling 
voyages  was  held  to  be  repugnant  to  the  contract,  and  inadmissible.' 

§211.  Same — Contracts  for  Work  and  Labor.  —  A  contract  for  ties  to  be 
supplied  to  a  railroad  company  [)roviding  that  tlie  "ties  will  be  finally  inspected, 
and  acce{)ted  or  I'ejected,  when  being  distributed  on  the  road-bed  in  a<lvance  of 
the  track,"  the  following  evidence  was  rejected  as  in  conflict  therewith,  viz. : 


'  Rankin  v.  Amcviean  Ins.  Co.,  1  tlall,  619. 

'-'  Werner  r.  Footman,  .54  Ua.  128. 

■>  Siulizr.  Dickijy,  .5  liinn.  'l^Tt. 

'  Kandolph  v.  Holdoii,  II  Iowa,  .W. 

i*  Peters  t'.  Stavcly,  1,')  I,.  T.  's.  s.)  ISl. 

•^  Sweet  V.  Jenkins,  1  I}.  I.  1(7. 

'  "Till!  words  arc  plain  and  unamliigu- 
0U8.  'I'liey  lia\e  but  one  U'Kiniatu  nioau- 
infi,  and  it,  wan  not  pcrniiHsililo  to  pivc  to 
tl'.ein  a  dill'orent  mcaaiii;^,  eitlicr  liy  direct 
or  indu'eet  proof,  as  was  propo.sed  in  tliis 
case.  If  the  conti-aei  liad  Ijecn  silent  on  tlie 
subject  of  the  negro's  lost  time,  we  do  not 
■ay  (but  tbe  alleged  local  uustoni  of  Qaldwin 


County  was  not  a  leKilimate  subject  ni 
proof."  Stone,  J.,  in  Harlow  r.  Laniln'rl, -J^ 
Ala.  -ai. 

I-  "  In  the  present  ca-^e,  the  express  -lipii 
lation  in  tlie  contract  re-tric,(iii(?  the  service 
of  tlic  "lave  to  cutting  cord  wood  alone,  aiifl 
excluding  all  other  kinds  of  service,  mani- 
fests   th(!  intention  of    tlu!  parties,  in   the 
language  of   the   fore;,'')iiig  anthoriMes,  to 
exclude  tic;  operation  of   U'-age,  and  such 
evidence  wouM  be  rcpiigiiinit  to  and  inivin 
sistent  with  llie  written  contract."     MeKiii 
ney,  J.,  in  IJedfor<l  r.  Flowers,  7  Humph. '-••-.'. 

»  Wandall  v.  Uotch,  12  I'ick.  107. 


U2 


WlllCN    IN    COM-'MC'l"    U  ITU    CO.NTKACTS.  ETC. 


Colli  1  Ml 


for  Work  iiikJ  Liihov. 


!  I 


ES    ?  a  V 

m 

V 


That  there  was  a  general  custom  attendini;  the  construction  of  railroailN, 
whereby  the  inspection  and  rnurkinjj  of  ties  constitute  an  acceptance  hy  tli^ 
company,  notwithstantlini!;  the  company  reserved  the  ri^ht  of  finally  accepting 
or  rejecting  any  imi)i!rfect  ties  discovered  when  placing  the  ties  on  the  roiiii-bed 
in  advance  of  the  track.'  And  where  a  contract  for  the  construction  of  a  rail- 
road (ixed,  as  the  prict'  of  -iradiny;,  a  certain  rate  per  yard,  and  providcid  that  no 
extras  siiouid  be  allowed,  a  cust'>m  to  the  contrary  was  irrelevant.'  VVIicro  a 
contract  reciuires  that  a  party  should  "clear,  grub,  and  pile  the  brusii  "  on  all 
of  a  certain  piece  of  land,  evidence  that  it  was  not  usual  in  the  neigliborliootl 
to  "-'■"•^"  ■'^iich  lands,  or  that  a  farm  would  be  better  without  havin-^  them 
i;r\ibl)i'd,  is  inadmissible.'  So,  where  the  contract  was  to  "clear"  a  tract  of 
land,  a  usa^e  lo  affect  the  ordinary  signification  of  the  word  was  rejected. 
.Vnd  where  a  party  agreed  to  dig  a  ditch  *' two  feet  deep  and  eighteen  inelics 
wide  at  the  bottom,"  evidence  of  the  custom  of  the  country  as  to  dinjtin'j 
'les  was  held  incompetent.' 
^'  •^■■\\n  stone-cutters  agreed  in  writing  with  the  defendant  to  furnish  stone 
}oi  in  .  buihling  according  to  the  plans  and  specifications  of  an  architect,  and  to 
do  all  the  fitting  and  rebating  necessary.  Wooden  patterns  were  necessary  to 
cut  the  stone  according  to  the  plans,  and  these  the  stone-cutters  procured  and 
I>ai.  ''or,  .;  .  ^ued  the  defendant  for  their  cost,  in  which  action  it  was  held  thai 
evidence  of  a  ii^ngc  for  stone-cutters,  in  cutting  stone  for  a  building,  to  procure 
such  patterns,  and  recover  the  cost  from  the  owner,  was  inailmissible.  rhe 
patterns  were  not  to  be  paid  for  by  the  defendant,  by  the  express  terms  of  the 
contract,  but  the  plaintiffs  were  impliedly  bound  to  provide  them,  as  tliey  were 
to  provide  all  other  necessary  tools."  Where,  in  a  contract  for  building  a  house, 
the  defendant  agreed  to  pay  "  38  per  thousand  for  each  thousand  brick  whicli 
may  be  laid,"  it  was  not  competent  to  show  that  by  tlie  usage  of  the  trade  it 
was  customary  to  compute  the  contents  of  walls  having  doors,  windows,  and 
otlier  openings  as  if  they  were  solid.'  So,  where  P.  covenanted  to  [»ay  B. 
"  $7  per  thousand  for  making  and  laying  brick,  counting  the  neat  brick  in  the 
building,"  and  B.  was  permitted  to  introduce  witnesses  who  testified  that  "  the 
rule  known  and  established  among  masons  for  measuring  their  work  and  xscer 
tuining  the  number  of  neat  brick  in  a  building  was  to  ascertain  tlie  number  of 
cubic  feet  by  multiplying  the  aggregate  length  of  the  walls  from  out  to  out  by  the 
height  of  the  story,  and  that  product  by  the  thickness  of  the  wall  (which  would 
give  the  cubic  feet  in  the  wall),  counting  the  corners  twice,  and  then  by  nmlti- 
plying  the  number  of  cubic  feet  thus  ascertained  by  twenty-two  and  a  half,  the 
product  would  be  the  number  of  neat  brick,"  the  case  was  reversed  for  error. 


'  Smyth  V.  Ward,  40  Imvu,  ;W9. 

2  Phillips  V.  .Still  T,  'Ji;  Iowa,  ;U!). 

■"The  eoui't  Ijelow  ernnl  in  admitting 
evidence  sliowinj;  tlial  it  was  not  nsnal  to 
grub  I'livines  such  as  this",  and  that  it  was 
thought  to  be  better  for  the  farm  not  to 
have  them  grubbed.  Holmes  had  a  right  to 
contract  to  have  the  whole  land  grubbed, 
as  he  did.  Whether  it  was  a  matier  of 
utility,  in  his  judgment,  or  of  mere  taste,  it 
was  his  privilege  to  differ  with  others  on 
that  subject     ♦    *    *    The  fae,t  that  he  had 


made  a  contract  to  have  that  portion  of  the 
land  grubbed  showed  that  he  chose  to  differ 
with  those  who  thought  it  belter  not  to 
have  it  done,  and  refuieil  in  advaiu-c  any 
Inference  to  be  drawn  from  the  opinions  of 
Others  as  to  his  views  and  wishes."  (;alon, 
J.,  in  Holmes  v.  Samuel,  15  III.  419. 

<  Hariter  v.  Pound,  10  Ind.  ;V2. 

■'  Harvey  v.  Cady, :!  Mich.  4:il. 

•  Davis  V.  Galloupe,  HI  Mas<.  ISl 

'  Kendall  v.  Kussell,  5  Dana,  501. 


M 


CONTKACTS    AND    USAGES. 


443 


Agrccnicuts  for  Woik  and  Labor. 


of  railroads, 
itaiicu  by  tlir 
illy  accoptinw 

tlie  roiiil-bed 
Jon  of  a  rail- 
ivided  Miat  no 
It."  Wlicr,'  a 
)nisii  "  on  all 
uoi<jliborlio»d 

haviii'j;  tlu^in 
r"  a  tnu'.l  of 
iras  rcjtuited. 
;hteea  inches 
18   to  iliu;'4iuj{ 

furnish  stone 
hilcct,  and  to 
I  necessary  to 
procured  uud 
was  held  that 
ng,  to  pro(uire 
lissibln.     Tho 
terms  of  tlie 
as  tliey  were 
dins;  a  house, 
1  brick  whicli 
f  the  trade  it 
windows,  and 
:d  to  [)ay  B. 
brick  in  tho 
ied  that  "  th.; 
rk  and  tiscer 
he  number  of 
to  out  by  the 
which  would 
len  by  multi- 
id  a  half,  the 
,od  for  error. 

portion  of  the 
chose  to  diffiM- 

bolter  not  to 
II  iiitv:iu<'(5  any 
the  oiiiiiioiw  (if 
Mhos."  Oatou, 
I.  41«. 

Ml 

a,  501. 


"The  coveniinl,"  said  tlio  court,  "is  to  be  construed  according;  to  the  plain 
;ind  obvious  meaning  of  the  terms  used  by  the  community  at  large,  and  not 
according  to  tlicir  terms  as  used  among  brick-masons." '  Where  A.  agreed  to 
haul  to  his  mill  and  saw  into  boards  certain  mill-logs  belonging  to  B.,  for  which 
service  he  was  to  receive  "one-third  of  the  stuff  after  sawing,"  it  was  held  that 
a  usage  of  the  mill  to  retain  the  slabs  as  part  of  the  compensaliou  for  sawing 
was  inadmissible.'  And  where  a  contract  required  a  party  to  win  stones,  etc., 
"for  the  purpose  of  building,"  it  was  held  that  evidence  of  usage  was  not 
admissible  to  explain  the  sense  in  which  the  word  "building"  was  used.*  A 
contract  in  writing  to  keep  anil  return  certain  sheep  cannot  be  sliown  by  usage 
to  have  been  iutendtid  to  be  a  contract  to  return  an  equal  number  of  slieep  of  a 
like  quality.* 

A  printing  and  publishing  company  entered  into  a  contract  with  llie  city  of 
Detroit  to  do  its  printing  at  eighty-si.'c  per  cent  below  the  rates  fixed  by  the  stat- 
utes of  Michigan  for  the  publication  of  legal  notices,  a  clause  in  the  contract 
providing  that  "  no  constructive  charges  whatever  are  to  be  made  for  printing, 
publishing,  or  furnishing  material."  Under  this  con'ract  the  company  piil)lished 
the  list  of  tax-sales,  known  among  printers  as  "  llgure-work."  Acconiiiig  to  a 
custom  among  printers,  double  measure  was  allowed  for  such  work  in  the 
payment  of  employees  and  in  charges  to  customers.  During  the  time  of  such 
publication,  the  manager  of  the  company,  on  discovering  such  fact  and  ascer- 
taining the  custom,  went  to  the  city  comptroller  and  Informed  him  that  the 
company  would  make  a  claim  against  the  city  for  iIduIjIc  measurement.  It  was 
iicld  that  the  custom  could  not  entitle  the  company  to  doul)le  measurement,  the 
terms  of  the  contract  being  conclusive  on  this  point.*  In  anoMier  case,  by  the 
terms  of  a  contract  entered  into  by  the  plaintiff  with  tlie  city  oi  New  York  for 
the  construction  of  a  sewer,  tlie  contractor  was  not  to  be  cntiLled  to  demand  or 
receive  any  payment  for  auy  portion  of  the  work  to  be  done  or  materials  fur- 
nished "  until  the  same  should  be  fully  completed,  and  the  assessment  to  be 
levied  thereon  duly  confirmed."  It  was  further  provided  in  the  contract  that 
advances  might  be  made  in  conformity  with  a  city  ordinance  which  allowed 
seventy  per  cent  to  be  paid  on  certilicite,  the  remaining  tliirty  per  cent  to  be 
reserved  until  the  final  completion  of  the  contract,  but  required  that  interest  on 
such  advances  should  be  charged  from  the  time  of  making  them  up  to  the  time 
of  final  payment.  The  court  held  that  interest  should  be  charged  on  tlie 
advances  up  to  the  time  of  the  conllrmation  of  the  assessment,  and  refused  to 
hear  evidence  of  a  custom  of  the  defendant  city,  through  its  departments,  to 
charge  interest  only  up  to  the  time  of  the  completion  of  the  work,  and  not 
until  the  confirmation  of  the  assessment.* 

A  joint  undertaking  to  build  a  vessel  cannot  be  affected  by  a  custom  of  the 
place  for  persons  engaged  in  building  vessels  each  to  be  responsible  only  for 
his  ovrn  share.'  And  on  a  contract  to  pay  an  architect  ten  per  cent  commission 
for  building  a  house,  evidence  of  tlie  customary  commissions  for  biilldiug  such 
huuKus  is  irrelevant." 


^•■■' 


'  Pavoy  V.  Burch,  :5  Mo.  ;m. 

=  (Juorgo  t>.  IJiirtlett,  22  N.  U.  466. 

*  Chirlton  v.  Gibgoii,  i  Car.  &  Kir.  641. 

*  Wheeler  r.  Nur.-^c,  20  N.  11.  220. 

*  Doti'Oit  Advertiser,  etc.,  Co.  v.  Oity  of 


Detroit  (Sup.  Ct.  Mich.,  April,  ISSO). 

"  FeUowa  V.  Mayor  of  New  Yorii,  17  Ilun, 
240. 

'  Itipley  V.  Crookcr,  47  Me.  370. 

'  Loncrgan  v.  Oourlnoy,  75  III.  3S0. 


444 


WHKN     IN    CONFLICT    WITH    CO.NTUACTS,   KTC. 


Contracts  between  Principal  and  Ajjent. 


I"  *■'  i  H 


t-J'  ! 


§  212.  Same  —  Principal  and  Agent.  —  And  evidence  of  a  usage  in  not  admis- 
sible where  an  aj^ent's  contract  Is  clear  and  nnainljisuous.  In  a  Missouri  case,' 
suit  was  brought  on  a  contract  to  recover  a  balance  claimed  to  be  due  under  it. 
The  defendant  hi^d  contracted  to  pay  the  plaintiff  "twenty  percent  upon  all 
original  or  flrst-yei;r  premiums  collected  and  paid  in  by  him  upon  policies  issued 
upon  applications  taken  "  by  him.  On  the  trial,  the  plaintiff  offered  evidence  to 
show  that  it  was  the  established  "usage,  custom,  and  method  of  doing  business 
by  the  insurance  company,  in  regard  to  such  policies  as  were  referred  to  in  the 
contract,  to  treat  all  premiums  as  collected,  thougli,  for  the  convenience  of  the 
assured,  payable  in  instalments."  Tlu;  court  excluded  the  evidence,  which 
action,  on  appeal,  was  aftirmed.  Cuuuir.K,  J.,  said:  "According  to  the  obvious 
reading  of  this  stipulation,  it  is  clear  that  it  secured  commissions  to  the  t>Iiuntiff 
alone  upon  moneys  actually  collected  and  paid  in  by  him.  His  right  to  the  coin- 
mission  is  made  dependent  upon  an  actual  collection  and  payment.  That  this  is 
the  true  construction  of  the  contra(;t  upon  its  face  is  not  disputed.  *  *  * 
It  was  offered  to  be  shown,  in  the  way  of  explaining  the  contract,  that  tin- 
insurance  company  concerned  in  these  policies  and  premiums,  upon  the  accept- 
ance of  an  application  and  the  issue  thereon  of  a  policy,  was  accustomed  to 
credit  the  soliciting  agent's  commissions  at  once,  althougli  the  premium  for  the 
first  year,  upon  whicli  the  coTnmission  was  allowed,  was  not  then  paid,  and  was 
payable  by  instalments  at  future  tlates.  *  *  *  Tlie  defendant  agreed  to  pay 
the  plaintiff  a  commission  on  all  moneys  which  the  plaintiff  siiould  collect  and 
pay  over.  There  is  nothing  here  for  a  construction.  The  plaintiff  is  simply 
suing  to  recover  commissions  on  money  wliich  iie  did  not  collect  and  pay  over, 
and  seeks,  by  the  aid  of  a  construction  founded  on  usage,  to  so  cnhirL'c  tiic 
scope  of  the  stipulation  as  to  include  commissions  on  all  original  prcniiunis, 
whether  collected  and  paid  over  or  not.  The  parties  might  have  so  contracted, 
but  did  not.  The  usage  must  yield  to  the  express  stipulations  contained  in  the 
written  agreement."  The  Missouri  agent  of  a  Connecticut  life-Insurance  com- 
pany having  inquired  of  the  company  concerning  the  terms  on  which  he  w.is 
employed,  received  the  following  answer  from  them:  "Concerning  yonr  stains 
in  Missouri,  it  is  simply  this:  You  are  there  working  up  a  business  for  yourself, 
and  are  paid  the  highest  commissions  which  we  pay."  In  consequence  of  sub- 
sequent disputes,  the  agent  was  soon  after  discharged  by  the  company,  tlune 
being  at  the  time  the  sum  of  $1,772  in  his  hands,  which  they  claimed.  The 
agent  brought  suit  for  his  commission,  and  on  the  trial  offered  to  prove  by  men 
familiar  with  the  business  of  life  insurance  that  the  words  of  the  letter  had  a 
peculiar  and  well-understood  meaning  among  insurance  men;  that  its  meaning, 
as  understood  in  that  business,  was  that  the  agent  should  have  the  rigiit  to 
solicit  and  cause  policies  to  be  issued  according  to  the  published  rules  and  rates 
of  the  company,  and  should  have  the  right,  during  the  life  and  force  of  such 
policies,  to  collect  all  renewed  premiums  thereon,  and  have  commissions  on 
such  renewals;  and  that  if  lie  was  discharged  by  the  company  without  sutllcicnt 
cause,  he  was  entitled  to  be  paid  immediately  the  present  value  of  his  conuuis- 
sions,  to  be  computed  by  the  actuarial  rule  used  by  such  companies  to  value 
policies.  The  trial  judge  excluded  the  evidence,  and  in  the  Supreme  Court  of 
the  United  States,  where  the  case  was  taken,  his  ruling  was  affirmed.    "  It 


>  Kimball  v.  Brawner,  47  Mo.  398. 


CON  i  I;A(  TS    AND    USAGES. 


445 


Priiii'i|)ii!  and  Aajtint. 


appears  to  us,  as  it  did  to  the  Circuit  Court,"  said  Mr.  Justice  Mim.ku,  "that 
tlie  testimony  offered  would  liave  established  a  new  and  distinct  term  to  the 
contract.  It  would  have  established  a  contract  very  different  from  the  written 
one  introduced  by  plaintiff.  The  lun,t;uage  of  the  letter  was  neither  ambij^uous 
nor  technical.  It  required  and  needed  no  expert,  no  usage,  to  discover  its 
meaning.  To  have  admitted  the  usaDje  offered  in  evidence  in  this  case  would 
have  been  to  make  a  contract  for  the  parties,  differing  materially  from  the 
written  one  under  which  the)'  had  both  acted  for  some  time."  '  Where  the  con- 
tract of  an  agent  with  an  insurance  company  provided  that  certain  specilicd 
commissions  should  be  "  as  compensation  in  full  for  any  and  all  services  under 
1  ids  agreiinont,"  a  custom  in  the  insurance  business  giving  the  agent  commis- 
sions on  the  renewal  premiums  on  policies  obtained  by  him  was  rejected. ^ 

By  a  written  contract,  commission  merchants  agreed  that  they  would  receive 
goods  consigned  to  them,  and  insure  and  sell  them  in  accordance  with  pro- 
visions eoulained  therein,  "and  charge  on  all  such  sales  a  commission  of  <ij  per 
cent,  *  ♦  *  which  cliarge  shall  include  commission,  labor,  cartage,  insurance, 
*  ♦  ♦  and  every  expense  whatever."  At  tlic  termination  of  the  contract 
some  of  the  goods  remained  unsold,  and  at  the  request  of  the  consignees,  and 
with  the  consent  of  the  consignors,  were  transferred  to  other  commission  mer- 
chants. The  first  commission  merchant  sought  by  usage  to  recover  one-half 
commissions  on  the  latter  goods,  but  the  usage  was  rejected  as  repugnant  to  tlie 
<;xprcss  agreement.  ■  In  an  action  to  recover  damages  for  breach  of  orders,  on 
the  sale  of  an  invoice  of  molasses  consigned  by  the  plaintiff  to  the  defendant, 
it  appeared  that  the  plaintiff  wrote  to  the  defendant,  enclosing  the  invoice  and 
hill  of  lading  of  the  goods,  and  saying:  "  On  the  arrival  of  this  cargo,  unless  a 
fair  profit  can  bo  realized  on  landing,  please  have  the  hoops  drove,  and  [)ut  it 
into  .1  good  store,  with  the  hope  of  sending  a  further  cargo."  The  defendants 
sold  the  goods  at  a  loss,  and  on  the  trial  the  court  rejected  evidence  of  a  custom 
of  the  port,  which  the  defendant  offered,  justifying  their  action  under  the  cir- 
cumstances. The  jury  found  for  the  plaintiff,  and  the  judgment  was  aflirmed 
on  appeal.  "If  a  usage,"  said  Rockus,  J.,  "be  certain,  uniform,  ancient,  and 
r(>asonabk',  it  incorporates  itself  into  the  contract.  But  as  this  is  a  suit  for  a 
breach  of  an  order,  plain,  positive,  and  free  from  ambiguity,  I  cannot  understand 
what  the  usage  of  those  cities  has  to  do  with  the  matter  in  controversy.  If  the 
piainliff  failed  to  prove  a  breacli  of  orders,  there  was  an  end  of  his  case.  If  he 
succeeded  in  proving  instructions  binding  on  the  defendants,  and  the  breach  of 
tliem,  it  admits  not  of  control  by  reason  of  any  custom  whatever.  The  agree- 
ment of  the  parties  constitutes  the  law  of  the  contract."  ♦ 

§  213.  Same  —  Bankers  and  Brokers  —  Bills  and  Notes.  —  In  Allen  v.  D>ikcrs,' 
the  action  was  upon  a  promissory  note  in  tliese  words:  — 

'••1521,000.  New  York,  January  11),  183!). 

"  Sixty  days  after  date,  I  promise  to  pay  to  Dykers  and  Alstyne,  or  ordi;r, 


'  Partridge  v.  Insurance  Co.,  15  Wall.  S75. 
And  see  Stagg  v.  Insurance  Cd.,  10  Wall.  589. 

-  ('ufitluinuu  V.  Southern  Mutual  Ins.  Co., 
14  Bush,  197. 


'  Ware  r.  Hayward  Itubber  Co.,  3  Allen, 
34. 

*  Porter  v.  Patterson,  15  Pa.  St.  230. 

^  3  Hill,  .59:;  (aflirmed  in  Dykers  v.  Allen,  7 

Hill,  497). 


44<) 


WIIKN    IN    CONFLICT    WITH    CONTUACT.S,   ETC. 


Hankors  ami   Brokers  —  Rills  and  Noto 


tV 


4 


twenty-one  thousand  dollars,  for  value  received,  with  interest  at  tlio  niti;  of  sm  en 
per  cent  per  annum;  havinji  deposited  with  them  as  collateral  security,  wiih 
authority  to  sell  the  same  on  ttw  non-performance  of  this  promise,  two  luiiKlnd 
aind  fifty  shares  North  Anieri(:in  Trust  and  IJankinir  Conipnny  stock.  Sale  to  ijf 
made  at  the  board  of  brokers.     Notice  waived  if  not  paid  at  maturity. 

'«  Wm.  P.vxson  Haif  i;i  t,' 

This  note  was  jjfiven  by  the  plaintiff  for  a  loan  of  .$21,000,  and  was  executed  l)v 
his  aijent.  He  claimed,  in  the  action,  to  recover  the  difference  b(!twi  en  Uic  value 
of  tlie  stock  and  the  money  loaned,  on  the  ground  that  tlie  defendants  had  sold 
the  stock  before  the  money  became  due.  Tlie  latter  offered  to  prove  that  win n 
stock  was  deposited  with  a  broker  as  collateral  security,  it  was  the  fieiu  ral 
usajie  of  brokers  for  the  latter  to  hypothecate  or  dispose  of  it  at  pleasure,  uud 
<m  payment  or  tender  of  tlie  principal  debt,  to  return  an  equal  number  of  shares 
of  the  same  kind  of  stock.  The  rejection  of  this  evidence  was  lield  proper  on 
appeal.  Said  Nklson,  C.  ,J.  :  "  It  is  not  pretended  that  a  pled«j:ee,  as  suc^li,  lias 
aright  to  dispose  of  the  pledge  before  the  pledgeor  fails  to  comply  wiili  liis 
engagement;  on  the  contrary,  it  is  conceded  that  such  right,  if  it  exists  at  all, 
must  be  conferred  by  an  express  or  implied  agreement.  In  this  case,  us  tlie 
agreement  between  the  parties  was  in  writing,  the  question  as  to  the  defendant's 
right  to  .sell  the  stock  before  the  note  became  due  must  be  i  'eruiiiied,  as  in 
other  cases  depending  upon  the  construction  of  written  instruments,  h.v  <;oi!- 
snlting  the  terms  and  provisions  of  the  agreement,  and  thus  entleavoi-inu:  to 
ascertain  the  understanding  and  intent  of  the  parties.  Bringin;.'  the  question 
down  to  this  test,  and  assuming  that  the  parties  expressed,  and  intended  to 
express,  their  mutual  understanding  of  tlie  terms  upon  which  the  loan  was  made, 
it  seems  to  me  impossible  to  raise  a  doubt  upon  the  true  meaning  and  character 
of  the  transaction.  The  plaintiff  applies  to  the  defendants  to  borrow  821,000  for 
sixty  days,  offering  as  collateral  security  the  two  hundred  and  tlfty  shares  of 
stock  in  question.  Tlic  defendants  agree  to  the  proposition,  advance  the  money, 
and  take  a  note  for  the  amount,  stating  therein  tlie  deposit  of  the  stock,  nnd 
that  the  defendants  are  authorized  to  sell  the  same  on  non-payment  of  the  hmn. 
The  note  contains  no  consent,  express  or  implied,  that  the  defendants  may  sell 
or  dispose  of  the  stock  before  the  loan  becomes  due.  On  the  contrary,  it  con- 
tains a  strong  implied  proliibition  against  selling  except  in  a  single  event,  viz.: 
non-payment  of  the  money  at  the  date  specified.  There  is  not  only  no  authority 
to  sell  before  the  happening  of  the  event,  —  which  of  itself  is  enough  to  refute 
the  pretension  of  the  defendants,  and  subject  them  to  the  consequences  of  a 
breach  of  trust,  — but,  having  provided  for  the  sale  at  a  given  period  and  on  a 
specified  condition,  all  idea  of  authorizing  one  previous  to  that  time  is  neces- 
sarily negatived,  upon  the  familiar  maxim,  Expressio  unius  est  eM'.lnsio  alteriiis. 
The  defendants  being  stockholders  and  dealers  in  stock,  their  counsel  offered  to 
prove  on  the  trial  that  it  was  the  usage,  when  stock  was  transferred  to  sucli 
dealers  by  way  of  collateral  security,  not  to  hold  it  specifically,  but  to  transfer 
it,  by  hypothecation  or  otherwise,  at  pleasure,  and  on  payment  or  tender  of  the 
money  advanced,  to  return  an  equal  quantity  of  the  same  kind  of  stock ;  also, 
that  this  usage  was  general,  and  known  to  he  agent  who  made  the  loan  in  ques- 
tion. The  object  of  the  offer  was  to  lay  the  foundation  for  in.sisting  that  r.lie 
usage  sho  ;]i'i  ^o  rogar'.ed  as  incor;:oi-ited  in,  and  forming  part  and  parcel  of  the 


CONTKAC  IS    A\l>    IISAGKS. 


447 


Bankers  and   IJrokcrs  —  Vendor  and  PuitIkislt. 


I'  rutc;  of  si'\ CI) 
scciirit.y,  will) 
',  two  IiundniJ 
•k.  Salo  to  be 
rity. 
Hai.tivit,' 

is  nxcoiitod  by 
vvcc'U  till-  value 
ilunts  had  sold 
•ve  that  when 
s  the  jieiu  ral 
pleasure,  and 
ibor  of  shares 
tdd  proi)er  on 
■,  as  such,  lias 
inply  Willi  his 
.  exists  at  all, 
s  case,  as  the 
1'"  defendant's 
riniiieii,  a>  in 
eiils,   l)v  con- 
ideavorinir  to 
the  queslioii 
i  intended  to 
lan  was  made, 
md  ciiaraetcr 
w  821,0011  for 
fty  .siiares  of 
:e  the  money, 
le  stock,  nnd 
of  the  hian. 
ants  may  sell 
trary,  it  con- 
event,  viz.: 
no  autliority 
igh  to  refute 
jiiences  of  a 
od  and  on  a 
me  is  neces- 
UHio  nUerins. 
el  offered  to 
rod  to  sticli 
t  to  transfer 
ender  of  the 
stock ;  also, 
oaa  in  qucs- 
ng  that  the 
arcel  of  the 


ftiireement;  thus  making  the  latter  import  a  consent  on  tlie  part  of  the  plaintiff 
that  the  defendants  miijlit  use  llie  stock  tlurinj;  tlie  riiMiiin;;  of  the  loan,  the 
same  as  if  they  were  tin;  absolute  owners.  It  is  not  necessary  to  determine 
what  effect  would  be  due  to  such  proof  in  the  cas((  of  a  simple  pledj^e  as 
collateral  sticurity,  without  any  further  ay;reement.  Possibly  the  known  usajje 
in  like  cases  mi<;ht  be  considered  as  attachiuff  itself  to  the  transaction  and  con- 
stituting a  part  of  it.  But  wiicu  the  parties  have  chosen  to  prescribe  for  them- 
selves the  terms  and  conditions  of  tlie  loan,  they  must  be  held  to  abide  by  them; 
and  we  are  especially  bound  to  refuse  <  t'fe(tt  to  any  iLreneral  or  particular  usajje 
when  in  direct  contradiction  to  the  lair  and  le^^al  import  of  a  written  contract." 
In  Lombardo  v.  Gase,^  Case  had  executed  the  follo\vin<j  contract:  — 

"  Nkw  Yokk,  October  8,  18(53. 
«'  For  value  received,  the  bearer  may  (tall  on  mi:  for  one  thousand  shares  of 
the  stock  of  the  Cleveland  .and  rittsbiirii  Uailroad  Company,  at  one  hundred  and 
seventeen  (117)  per  cent,  any  time;  in  six  months  from  date,  without  interest. 
The  bearer  is  entitled  to  all  the  dividends  or  surplus  dividends  declared  during 
the  time,  to  half-past  one  v.  m.  each  day. 

"Watson  E.  Case." 

It  appeared  that  at  the  time  of  the  making  of  this  contract  a  dividend  of  four 
per  cent  had  been  declared  and  announced,  and  that  the  stock  was  selling  "divi- 
dend on."  The  plaintiff  had  demanded  this  dividend  from  the  defend.mt,  but  it 
had  been  refused,  and  the  action  was  instituted  therefor.  He  offered  to  prove 
that  by  the  general  custom  of  brokers  and  dealers  in  stocks  in  the  city  of  New 
York,  tlje  words  "dividends  or  surplus  dividends,"  in  the  contract,  were  intended 
to  mean  dividends  declared  on  the  s  oek,  whether  they  had  been  announced 
before  or  after  the  date  of  the  contra(  t,  providi  d  that  on  the  day  the  contract 
was  made  the  stock  was  silling  in  the  market  "dividend  on,"  and  not  "ex 
dividend."  The  evidence  was  ruled  to  be  inadmissible.  "  '  Six  months  after 
date'  cannot,"  remarked  Sutiiickland,  J.,  "by  proof  of  any  custom,  be  ex- 
tended, or  explained  to  mean  or  include 'a  day  or  two  before  date.' "  It  has 
been  held,  too,  that  in  an  action  against  the  drawer  of  a  bill  of  exchange  drawn 
and  indorsed  in  ICngland  and  payable  abroad,  and  dishonored,  evidence  is  not 
admissible  to  prove  a  usage  among  merchants  here  to  entitle  the  holder,  at  his 
option,  to  demand  from  tlie  drawer  the  amount  of  reexc  lauge,  or  the  sum 
which  ho  gave  for  the  purchase  of  the  bill,  this  being  a  usage  which  in  terms 
contradicts  the  written  instrument.'' 

§214.  Same  —  Vendor  and  Purchaser. —  Yatrs  v.  rym,^  decided  by  the 
English  Court  of  Common  Pleas  in  I81(i,  is  in  conllict  witli  many  later  cases  as 
to  the  admissibility  of  usage  to  show  the  trade  meaning  of  terms  in  written  con- 
tracts. It  was  an  action  on  a  sale  note  of  "  prime  singed  bacon,"  and  evidence 
was  offered,  and  rejected,  of  a  usagt.-  in  the  bacon  trade  that  a  certain  latitude  of 
deterioration,  called  "  average  taint,"  was  allowed  before  the  l)acon  ceased  to 
answer  the  description  of  prime  bacon.  Other  cases  are  eiiually  irreconcilable 
with  many  of  the  decisions  contained  in  previous  chapters  of  this  work.  A 
contract  for  the  sale  of  hogs  was  in  the  following  terms:  "  Muscatine,  February 


•'ii 


1  46  Barb.  a-). 

-  auie  i'.  I'.ii.ipo,  j  C.  ii.  ;.\,  !..)  5.>i. 


"  t>  x'tiun.  145. 


f 


41H 


wiiKN   IN  «;<)\KM<T  wiTJi  com'i:a«ts,  ktc. 


Criticism  of  Casli  v.  Ilinixlf 


.(  » 


28,  18fi8.  —  I  have  this  »hi.v  sold  to  H.  Willmorlnj»  fifty  good  hogs  at  80.50  per 
hundred  pounds,  uver.iijc  to  be  two  hundred  and  fifty  pounds,  delivcri'd  at 
Washington,  Iowa,  at  said  II.  Willinering's  option,  by  giving  ten  days'  notice, 
at  any  time  in  December.  Paid  on  contract,  ^'tO;  balance  to  be  paid  on 
delivery  of  hogs."  The  plaintiff  sued  the  defendant  lor  n'  '"^Mvering  ilie 
hogs.     Tlie   defendant  pleaded   that   the   plaintiff   never  gavi  the   uoljcc 

reijuired  by  the  contract.  On  the  trial,  the  plaintiff  i>ffered  to  show  that  it 
was  customary  among  dealers  in  hogs,  under  such  contracts,  "if  the  buyer 
did  not  declare  his  option,  or  llx  the  time  wlien  the  stock  was  to  be  delivircd, 
then  the  seller  was  understood  as  contracting  that  the  stock  .should  be  deliv- 
ered upon  the  last  day  fixed,  or,  as  in  this  case,  upon  the  last  days  of  the  month 
named;  and  defendant  thus  understood  the  contract."  But  this  evidence  w;is 
held  properly  excluded,  as  contradicting  its  words.'  A  contract  lilve  the  last 
called  for  "sixty-five  head  of  fat  hogs,  to  weigh  two  hundred  and  twenly-tlvc 
pounds  and  over."  The  plaiittiff  had  tendered  certain  hog.s,  which  it  wa.s 
shown  did  not  weigh  two  liundred  and  twenty-live  pounds  each,  and,  in  an 
action  for  refusing  to  receive,  he  was  permitlcil  to  show  that  by  the  custom  of 
the  trade  the  language  of  the  contract  was  understood  to  mean  that  the  hogs 
sliould  average  two  hundred  and  twenty-live  pounds.  On  appeal,  the  Supreme 
Court  construed  the  contract  as  calling  for  sixty-five  at  ad  weighing  eacli  two 
hundred  and  twenty-live  pounds,  and  reversed  the  case  for  the  a  ssion  of  the 
evidence  of  custom.''    This  case  certainly  falls  very  near  the  1  ich  divides 

the  cases  in  which  evidi'uce  of  a  usage  of  travle  is  admissible  tv^  .  rpret  a  con- 
tract, from  those  in  which  it  is  inadmissible  to  alter  it.  It  is  a  close  case,  but, 
in  the  opinion  of  tlie  writer,  the  evidence  offered  was  properly  admitted  below. 
Miller,  J.,  who  delivered  the  judgment  of  the  majority  of  the  Supreme 
Court,  cites  l)ut  one  case  (an  Iowa  one)  in  support  of  his  position,  and  gives  no 
evidence  that  he  had  examined  the  question  in  the  light  of  the  English  and 
American  adjudications.  He  advances  no  reason  for  liis  conclusion  except  that, 
to  his  mind,  tht;  contract  was  plain,  and  free  from  all  ambiguity.  "There  is 
simply,"  he  says,  "  an  omission  of  a  word  to  express  whether  the  weight  speci- 
fied is  til.'  weight  of  each  hog  or  the  aggregate  weight  of  all  the  hogs.  It  is 
very  clear  that  the  former  was  intended,  and  that  the  word  '  each '  is  to  be  im- 
plied." But  if  it  was  the  custom  of  the  trade,  when  buying  and  selling  a  lot  of 
hogs  over  a  certain  weight,  to  receive  or  deliver  hogs  aggregating  that  weight 
tliroughout,  tliough  some  fell  under  and  some  went  over,  it  is  clear  that  the  con- 
tract would  purposely  omit  to  specify  what  the  court  here  thought  was  acciden- 
tally omitted.  The  understanding  of  the  trade  as  to  what  the  contract  really 
meant  was  more  likely  to  be  correct  than  the  unaided  opinion  of  a  bench  of  law- 
yers. Of  this  belief  was  the  chief  justice,  who  dissented  from  the  ruling  of  the 
majority,  and  who  did  not  fail  to  give  reasons  for  his  dissent.  "  Contracts,"  said 
Beck,  C.  J.,  "  must  be  construed  with  reference  to  customs  prevailing  in  regard 
to  their  subjects;  and  wliile  the  express  terms  of  a  contract  may  not  be  changed 
or  modified  by  parol  evidence,  yet  the  meaning  of  its  words  may  be  explained 
and  applied  thereby  to  their  proper  objects.  A  custom  cannot  be  set  up  against 
the  clear  intention  of  the  parties  to  a  contract  as  expressed  therein,  but  the 
words  of  a  contract  must  be  construed  in  reference  to  a  custom  affecting  the 


Willmering  v.  lIcGaughey,  SO  Iowa,  205. 


*  Caah  V.  llinkle,  36  Iowa,  623. 


CONTRACTS    AND    CSAOKS. 


44!> 


at  SO. 50  per 

delivcivd   «i 

flays'  notice, 

>  be   paid  on 

""Mverins  'Iil- 

tin;   iiolicc 

show  that   it 

if    till'     1)U>IT 

be  (IfllviTcd, 
)uUl  he  deliv- 
of  the  iiiontti 
evideiiec  was 
like   the  last 
d  twenty-tivc 
which   it  was 
li,  and,  in  an 
the  custom  of 
.hat  the  huajs 
,  the  Suproine 
ling  each  two 
ssion  of  the 
ich  divides 
rpret  a  con- 
use  case,  but, 
nittod  below, 
the   Supreme 
and  gives  no 
English  and 
except  that, 
"There  is 
weiglit  speci- 
)gs.    It  is 
is  to  be  im- 
lling  a  lot  of 
that  weight 
that  the  con- 
was  acciden- 
ntract  really 
•nch  of  law- 
uling  of  the 
tracts,"  said 
ng  in  regard 
be  changed 
t)e  explained 
t  up  against 
ein,  but  the 
tffecting  the 


Vendor  and  Purchaser. 


I 


subject,  and  known  to  the  parties,  that  the  true  intention  may  be  ascortainod. 
In  the  contract  before  us,  the  parties  agree  that  the  hugs  sold  are  '  to  weigh  two 
hundred  and  twcnty-ttve  pounds.'  Now,  the  custom  in  (luestiou  does  not  chanffo 
the  import  of  the  words.  It  simply  applies  to  them  a  meaning.  The  hinguage  of 
the  contract  is  not  explicit,  and  is  left  by  tlio  parties  to  intcrpritation.  Its 
meaning,  whether  each  hog,  or  the  average  of  all  the  hogs,  must  be  two  huinlrod 
and  twenty-five  pounds  Mi  weight,  may  well  be  ascertained  by  proof  ot  ;i  custom 
governing  tlie  trade,  iu  view  of  which  the  law  presumes  the  parties  contracted. " 
In  Beats  v.  Terry,^  the  contract  was  in  these  words:  — 

"  For  value  receiveo,  we  hav;  this  day  sold,  and  agree  to  deliver  to  Me.'-rs. 
Roderick  Terry  &  Ou.,  in  the  city  of  New  York,  two  thousand  barrels  supcrMne 
riour,  '  City  Mills,  Rochester,  at  six  dollars  per  barrel,  payable  cash  on  do  ^ery 
of  each  parcel,  to  be  delivered  at  our  option  in  all  the  month  of  June  next,  in 
parcels  of  not  less  than  two  hundred  barrels  each.  Any  variation  from  suptTtine 
to  be  settled  at  the  usual  rates  of  difference. 

"Cl.AUK   &   COI-KMAN. 

•'Nkw  YoiiK,  March  26,  1847." 

The  defendants  being  unable  to  deliver  the  flour  specified  when  called  for,  and 
an  action  being  brought  upon  the  contract,  they  offered  to  prove  that  by  the  usage 
of  the  trade  in  flour  in  New  York  city  it  was  customary,  on  contracts  for  the 
delivery  of  particular  brands  of  flour  at  a  future  day,  to  deliver  other  brands  ol 
equal  quality  in  fulQlment  of  such  contracts.  This  evidence  was  held  l~  be 
properly  excluded.  "We  cannot  recognize  a  usage,"  said  Vandkui'Oki,,  J., 
"which  will  authorize  a  party  U)  deliver  one  article  in  fulfilment  of  a  contract 
positively  to  deliver  anotlier — which  will  justify  him  in  delivering  the  fabrics  of 
one  mill  or  manufactory  when  he  has  expressly  contracted  to  deliver  those  of 
another.  The  injustice  of  such  a  rule  is  rendered  manifest  by  the  evidence  in 
this  case.  It  is  proved  that  when  the  supply  of  flour  is  small,  a  particular  brand 
will  often  maintain  its  j)rice  in  the  face  of  a  general  fall  of  $1  a  barrel.  Suffice 
it  to  say,  that  one  of  the  contracting  parties  wants  a  particular  brand,  and  the 
other  agrees  to  deliver  it  to  him;  and  it  is  not  in  law  or  sound  reason  u  good 
answer  for  the  vendor  to  say,  •  I  offered  you,  not  the  artkde  I  contracted  to 
deliver,  but  one  just  as  good.'  The  vendee  may,  at  the  time  of  the  contract, 
liave  tlie  most  conclusive  reasons  for  contracting  for  that  particular  brand,  and 
we  cannot  on  any  sound  principle  hold  the  contract  satisfied  by  the  tender  of 
another,  which  the  witnesses  may  deem  equally  good."  In  an  early  Missouri 
cMse,^  the  plaintiffs  had  made  their  bond  to  defendants  for  §12,000,  conditioned 
that  if  they  should  by  the  1st  of  April,  1808,  pay  §8,000,  payable  in  shaved  deer- 
skins, at  forty  cents  to  the  pound,  then  the  bond  to  be  void.  On  this  bond  judg- 
ment was  obtained  for  ^G,000  and  interest.  The  plaintiffs  then  filed  a  bill  in 
chancery  asking  to  be  relieved  from  a  portion  of  the  judgment.  They  alleged 
that  in  the  year  180G  shaved  deer-skins  at  forty  cents  per  pound  were  only  worth 
tiiirty-three  and  one-third  cents  in  money;  or,  in  other  words,  that  a  p(dtr> 
dollar  was  in  value  two  and  one-half  pounds  of  skins,  and  that  a  silver  dollar 
was  equal  to  three  pounds  of  deer-skins,  making  a  difference  of  one-sixth;  that 
bv  the  custom  of  the  country  a  contract  like  the  present  was  understood  and 
taken  to  be  a  peltry  contract,  and  that  the  sum  of  .$0,000,  being  mentioned,  was 


•  2  Sandf.  127. 


3  Glamorgan  v.  Ouisse,  1  Mo.  99. 


39 


450 


WHEN    IN    CONFLICT   WITH    CONTRACTS,   KTC. 


Vendor  and  Purchuser. 


i  . 


to  be  understood  as  a  means  for  ascertaining  the  number  of  pounds  of  docr-skiiN 
to  i)i!  paid,  when  tai<en  in  connection  with  the  price  of  the  pound  boinir  tixid  Mt 
forty  cents.  They  therefore  insisted  that,  as  in  April,  1808,  deer-;>kins  im,! 
fallen  to  twenty  cents  per  pound,  and  that,  as  fifteen  thousand  pounMs  oi 
doer-skins  was  the  real  thins  contracted  for,  twenty  cents  per  pound  on  iliut 
amount  sliould  be  the  measure  of  damages.  But  the  court  refused  the  nlii  f 
asked,  saying:  "  It  was  proved  that  the  custom  set  up  did  prevail,  l)ut  whether 
tliat  custom  had  the  force  of  law  or  not  does  not  appear;  nor  does  it  apixtir  t!i:it 
any  such  custom  was  in  the  mind  of  the  parties  at  the  time  of  making  this  Cdii- 
tract.  Then,  unless  this  custom  amounted  to  law,  it  could  have  no  eff(!(!t  on  lliis 
contract;  and  at  all  events  this  mode  of  expounding  contracts  by  parol  evideme 
of  the  understanding  of  some  is  extremely  dangerous,  and  by  law  is  not  admis- 
sible. The  contract  ;iiiist  be  expounded  from  its  face,  and  by  the  law  of  ihc 
land  here.  Then,  looking  at  the  instrument,  and  comparing  it  by  the  rules  of 
law,  the  parties  have  liquidated  their  own  daniagi-s  to  .S(>,C()0,  wliicli  .'«'.t;,()0(i  is 
dischargeable,  if  the  party  chooses,  by  the  payment  of  fifteen  thousand  pouii.ls 
weight  of  deer-skins.  If  these  deer-skins  are  not  paid,  the  debt  nevertlicli  v> 
remains  fixed  at  $(5,000.  This,  we  are  of  opinion,  is  the  true  ar.d  lawful  con- 
struction of  this  instrument;  so  that  we  cannot  perceive  injustice  has  lieoudoiic 
by  the  defendants  in  chancery  in  requiring  payment  to  that  amount."  It  is  iu  Id 
in  Illinois  that  the  phrase  "current  funds,"  in  a  note,  cannot  be  explaineil  In 
usage,  as  its  meaning  is  settled.' 

Where  \f.  contracted  with  K.  for  the  sale  of  salt,  as  follows:  "Sold  .1.  H. 
Rogeis  one  thousand  sacks  coarse  Liverpool  and  two  thousand  sacks  fine  Liver- 
pool salt,  at  .$2.10  per  sack,  to  arrive  by  the  15th  of  November,"  evidence  tliat 
by  the  custom  of  merchants,  the  words  "to  arrive  by  the  15th  of  November" 
meant  "deliverable  on  or  before  the  15th  of  November,"  was  held  iuadinissibji'.' 
A  usage  that  the  sale  of  hides  was  subject  to  the  approval  of  the  purchaser,  or 
of  an  inspector,  was  held  repugnant  to  the  following  contract  in  a  broker's 
book,  and  therefore  inadmissible:  "Boston,  September  !),  18()5.  —  Sold  Williiim 
B.  Spooner  &  Co.,  account  B.  G.  Boardman,  5  bales  D.  G.  cowhides,  1  l)ale  dry 
do.  at  17c  per  lb.,  net  cash,  delivered  in  N.  Y."-  So,  where  there  was  a  written 
contract  to  deliver  certain  quantities  of  flour  at  a  certain  price  at  r.  named  pliK c, 
on  seller's  option,  proof  of  a  usage  in  the  market  to  demand  margins  of  the 
seller  as  security  for  the  delivery  was  held  inadmissible.  "  There  is  no  aiiibi;j:ii- 
ity  or  uncertainty  in  Us  terms  or  stipulations,"  said  Mr.  Justice  Nelson,  "and 
the  conditon  sought  to  be  annexed  was  not  by  way  of  explanation  or  iuterpretii- 
tlon,  but  In  addition  to  the  contract.  The  plaintiff  agrees  to  deliver  a  given 
number  of  barrels  of  flour  on  certain  days,  at  the  price  of  $\).25  per  barrel,  in 
consideration  of  which  the  defendants  agree  to  receive  the  flour  and  pay  the 
price.  This  is  the  substance  of  the  written  contract.  But  the  defendants  in-i^t 
that  besides  the  obligations  arisir-;  out  of  the  written  instrument  the  plaliitil't  is 
under  an  additional  obligation  to  give  security,  whenever  called  upon,  for  the 
faittiful  performance,  and  this  by  the  deposit  in  bank  of  the  sum  of  .«!5,<inO.  Tiie 
written  instrument  bound  only  the  personal  responsibility  of  the  plaintiff;  the 


>  Moore  r.  Morris,  20  111.255:  (jalena  Ins. 
Co.  V.  Kupfer,  28  111.  3U2;  Marc  ».  Kupfer,  U 
III.  2«) ;  Osgood  •.  MoConnell,  32  III.  74. 


«  nogers  V.  Woodruff,  30  Ohio  St.  KM. 
"  Boarduian  r.  spooner,  13  Allen,  ;}53. 


! 


CONTRACTS   AND    USAGES. 


4:)! 


Vendor  and  Purchaser. 


;  of  dc'cr-skiiiN 
beinii  lixcil  m 
eer-skiiis  Inn  I 
id  poun'l>  111 
loiuul  on  ili;a 
iscd  tlio  ri'li(  f 
1,  l)ut  wlictltcr 

it  iipprar  t!i:it 
ikin;;  this  cim- 
» i'ft'i;c,t  on  Ih'iN 
parol  cvidi'iiif 
■  is  not  iuhiiis- 
the  law  of  iln' 
»y  the  rules  ol 
vliicli  8ti,00(i  i>. 
jusand  poini'js 
it  nevertlu'lrs- 
:d  lawful  con- 

lias  been  done 
It."  It  is  luM 
i  explained  b.v 

:  "Sold  ,J.  II. 

acks  fine  Livcr- 

'  evidence  lluit 

of  November" 

iuadmissibli'.- 

pnrchaser,  or 

in  a  broker's 

-Sold  Williiim 

les,  I  bale  dry 

was  a  written 

,  named  plsiee, 

uirf?ins  of  tlie 

is  no  atnbi'jfii- 

ylKi.soN,  "ami 

or  interpret:!- 

leliver  a  siveti 

per  barrel,  in 

r  and  pay  the 

endants  in-i-i 

the  plaintil'f  i^ 

upon,  for  the 

.«i5,(inO.    Tlie 

plaintiff;  the 

hio  St.  6.12. 
Allan,  ;15.S. 


parol  evidence  seeks  to  superadd,  not  a  respoL'sible  name  as  a  surety,  but  in 
effect  the  same  thing  —  a  given  sum  of  money.  The  parol  proof  not  only  adijs 
to  a  written  instrument^  but  is  repugnant  to  the  legal  offeet  of  it."  '  So,  where 
the  defendant,  by  a  written  contract,  agreed  to  r/cll  the  plaintiff  "sixty  tons  o! 
Ware  potatoes  at  £.5  a  ton,"  it  was  held  inadnussible  to  siiow  that  a  particular 
kind  of  Ware  potatoes  was  meant  by  the  plaintiff.^  Where  a  momorandnni  of  a 
contract  was  as  follows:  "Of  K.  Y.,  39  pockets  Sussex  liops,  Springetts;  5 
pockets  Kenwards.  78.s.  Springetts  to  wait  orders,"  it  was  lield  that  evidence 
of  custom  was  inadmissible  to  show  that  the  sale  was  on  a  credit  of  six  iiumttis. 
Under  a  written  contract  to  (leliver  wool  "  in  good  order,"  a  custom  which 
would  relieve  the  vendor  from  the  obligation  is  inadmissible.^ 

By  the  terras  of  a  contract  between  A.  and  B.  for  the  purchase,  killimr,  and 
packing  of  hogs,  it  was  agreed,  among  other  things,  that  the  hogs  were  to  be 
killed  and  packed  by  B.  "  on  joint  account,  eacii  party  to  have  one-half  interest.' 
It  was  held  that  evidence  of  a  custom  of  the  trade  that  when,  under  such  a  eon- 
tract,  ttie  packers  themselves  slaughtered  the  hogs,  they  were  entitled,  to  the 
exclusion  of  the  other  contracting  party,  to  the  profits  on  the  sale  of  the  bristles, 
gut,  fat,  and  grease  from  the  hogs  packed,  was  inadmissible,  as  being  in  direct 
confiict  with  the  express  terms  of  the  contract.*  A  contract  for  the  !)u rcha.se  of 
"  one  hundred  thousand  oranges,  more  or  less,  at  the  rate  of  !^':i  per  thousand, 
to  be  di'liv  red  to  us  boxed,  in  good  order,"  cannot  be  affected  by  a  custom  of 
orange-dealers  to  require  a  larger  and  better  fruit  than  that  deliv(!red  in  the  itarlir- 
ular  ease.*  Where  a  contract  calls  for  a  specific  parcel  or  lot,  descriijed  as  b(  iiig 
of  a  certain  quantity,  "  more  or  less,"  evidence  of  a  usage  to  limit  the  words 
"  more  or  less  "  to  a  certain  percentage  is  not  admissible."  In  an  early  Englisii 
case,"  <'vidence  had  been  offered  for  the  purpose  of  showing  that  the  plaintiff-^, 
who  had  contracttid  for  three  hundred  quartern  {more,  or  less)  of  foreign  rye,  coii  <! 
not,  consistently  with  the  usage  of  trade,  be  required  to  receive  so  large  an 
excess  as  forty-five  quarters  over  tliree  hundred.  The  question  as  to  tlu;  admis 
sibility  of  the  evidence  was  ultimately  withdrawn  from  the  attention  of  the  court; 
hut  LrrxLKDALK,  J.,  remarked  that  where  words  were  of  such  general  import, 
tie  should  feel  mueli  difiiciilty  in  saying  that  evidence  ought  to  l)e  receivid  to 
ascertain  their  meaning.  Under  a  contract  to  sell  ■'  one  hundred  shares  of 
stock,"  a  custom  that  something  more  passes  to  the  purchaser  is  invali<I ;  and 
wiiere  i*.  contract<Ml  to  sell  to  B.  "two  flocks  of  sheep,  except  two  bucks  and  a 
lame  ewe,"  at  a  certain  price,  a  cu.stom  tliat  the  wool  of  sheep  does  not  gd  to 
the  purchaser  was  excluded.'* 

The  plaintiff  delivered    at  the  defendant's  elevator  a  quantity  of  corn,  and 
received  the  following  instrument:  — 

"Cass  County  Mim,  and  Ei.kvatok  Co.,  January  ."),  187."). 
"Received  in  store  of  C.  R.  Marks,  one  load  of  corn,  subject  to   storage. 
Number  of  bushels,  2,i)20.  Nohton.  T." 


m 


'  Oelricks  v.  Kord,  23  How.  49. 

«  Smith  V.  .letfryes,  1.5  Met).  &  W.  .561. 

'  Ford  V.  YaloH,  2  Mimi.  &  «.  .549;  2  Scott 
K.  K.  645.  But  see  Lockctt  v.  Nicklin,  2 
Kxeh.  93. 

*  rolhemus  r.  freiniun,  ,')<»( 'al.  4:is. 

'  Atkinson  v.  Allen,  2!i  Ind.  37'>. 


•  Corwin  V.  Patch,  4  (Jul.  2(Vt 

'  Vail  V.  nice,  ,5  N.  V.  1.5,5.  And  seo  Caboi 
V.  Winsor,  1  Allen,  54«;  Brawley  v.  United 
suites,  96  U.  S.  16s. 

•*  Cross  t'.  EnKlin,  2  liarn.  &  Adol.  100. 

0  Spear  V.  Hart,  :t  Koljt.  420. 

")  Groat  V.  Gile,  29  Iowa,  431. 


452 


WHEN   IN    CONFLICT   WITH    CONTRACTS,  ETC. 


Miscollitneous  Contracts. 


The  grain  b('in<;  destroyed  the  next  night  while  in  the  elevator,  the  plaintiff 
sued  to  recover  its  value,  on  the  ground  that  the  corn  was  sold  to  the  dcH'nd- 
ants,  and  that  the  transaction,  as  exhibited  by  the  above  writing,  under  a  cus- 
tom of  the  place  where  they  wore  doing  business,  amounted  to  a  purchase  at 
the  market  price  of  the  grain,  when  the  plaintiff  should  demand  payment.  I'lUt 
it  was  ruled  that  such  a  custom  was  inconsistent  with  the  language  of  the 
instrument,  and  could  not  prevail.' 

Where  a  Pennsylvania  merchant  wrote  to  a  custt.  ner  5n  Virginia,  calling  liis 
attention  to  the  fact  that  an  account  was  overdue,  adding,  "We  must  request 
you  to  remit  the  amount,"  it  was  hiild  that  a  usage  in  the  former  State  that  such 
instruction  implied  that  the  remittance  was  to  be  at  the  risk  of  the  creditor,  was 
inadmissible."  Where  a  contract  for  the  sale  of  oats  provides  for  their  delivery 
on  the  cars  at  the  place  of  shipment,  proof  of  a  custom  that  the  place  of 
delivery  and  payment  is  the  place  of  destination  is  inadmissible  '  And  wliere 
a  contract  was  made  for  the  sale  of  a  horse,  the  horse  delivered,  and  a  note  for 
the  price  given,  evidence  that  it  was  the  custom  in  selling  horses  to  giv(!  the 
purchaser  time  to  try  the  animal  before  the  sale  was  ttnal,  was  rejected.* 

§215.  Same  —  Miscellaneous. — R.,  a  carriage-builder,  rented  to  M.,  by  the 
year,  a  gig,  under  a  written  agreement  providing  that  R.  was  "  to  keep  tlie  gig 
in  perfect  repair,  and  to  put  new  linings  and  new  wheels  once  every  twelve 
months,  so  long  as  M.  should  choose  to  keep  it,  at  the  rate  of  eigliteen  guineas 
a  year,  without  any  further  charges  whatever."  The  gig,  while  in  M.'s  posses- 
sion under  this  agreement,  was  injured  through  the  negligent  driving  of  a 
third  person,  one  shaft  being  broken,  and  it  was  thereupon  sent  to  R.'s  factory 
to  be  repaired.  R.  subsequently  brought  an  action  against  M.  for  the  cost  of 
these  repairs  and  the  loan  of  another  gig  while  the  damaged  one  was  under 
repair;  R.  proved  the  usage  in  the  trade  to  be  that  when  a  carriage  was  let  out 
on  hire  for  a  year,  the  lender  was  only  to  keep  it  in  repair  so  far  as  r(>pairs 
might  become  necessary  by  ordinary  wear  and  tear,  but  if  they  became  neces- 
sary from  the  carriage  sustaining  any  unusual  injury,  the  hirer  was  entitled  to 
charge  ther(>for,  and  also  for  the  hire  of  another  carriage  to  take  its  place.  Lord 
Dknman  ruled  that  the  agreement  subjected  R.  to  the  expense  of  repairs, 
.•dthough  necessary  in  consequence  of  an  ac'cident  happening  to  the  gig,  and  that, 
the  language  of  the  agreement  being  clear  and  unequivocal,  evidence  as  to  the 
gtmeral  usage  of  the  trade  was  irrelevant.''  So,  if  a  bailee  makes  a  special  con- 
tract, that  must  be  looked  to  in  determining  his  liability,  and  evidence  of  usage 
is  irrelevant.' 

A  party  executed  a  guaranty  of  "the  payments  of  all  flour  consigned  by  the 
said  W.  to  the  said  II.  for  sale."  This,  it  was  held,  would  not  cover  a  sale  to 
the  consignee  of  the  flour  remaining  unsold  upon  closing  the  account  between 
the  consignor  and  himself,  and  could  not  be  controlled  by  evidence  of  a  custom 
among  commission  merchants  to  purchase  goods  remaining  unsold  under  such 
vin-umstauces,  and  to  treat  such  a  transaction  as  a  sale  to  a  third  person.? 


1  Marks  v.  Oass  Elevator  Co.,  48  Iowa,  146. 
-■  Gr»SB  v.  Oriss,  W  <iratt.  202. 
'  Uuncan  v.  Green,  43  Iowa,  (>"8. 
*  Sohenok  v.  Oriffln,  »8  N.  J.  L.  462. 


Heading  r.  Menham,  1  Moo.  ft  R.  234. 
0  Goodfellow  V.  Meegan,  32  Mo.  280. 
'  Oarkin  v.  Savory,  14  Gray,  528. 


USAGES   AND    STATUTES. 


4f}:'> 


General  Rules. 


Where  it  is  the  condition  of  a  teller's  bond  "  faithfully  to  perform  ail  the  duties 
assigned  to  him  in  said  bank,  and  make  ^ood  to  tlie  said  Ijank  all  rlaiiia<^es  whicli 
tlie  same  shall  sustJiin  through  liis  unfaithfulness  and  want  of  care,"  the  usage 
of  other  banks  requiring  of  tellers  only  reasonable  care  and  diligence  is  irrele- 
vant.' 

Tlie  custom  of  an  innkeeper  to  deposit  baggage  in  the  guest's  bc^d-rooin  does 
not  affect  a  case  where  the  guest  has  ordered  it  to  be  placed  in  the  cotiiiiiercial 
room.^  Where  tliore  is  an  express  agreement  between  a  landlord  and  a  guest 
that  absences  shall  be  deducted  from  the  diargts  for  board,  that  it  is  the  custom 
of  hotels  not  to  allow  such  deductions  is  irrelevant.'' 

Wliere  a  written  contract  provided  that  certain  work  should  be  '•  raoasured 
by  the  city  engineer,"  the  usage  in  the  city  (•iigin(!er's  office  for  his  a.ssistant8  to 
attend  to  such  work  Wiis  lield  to  be  irrelevant.' 


i^l 


§  21(!.  The  Effecu  of  Statutes  on  Usages  and  Customs.  —  Statutes  (acts  of 
the  legislature)  may  be  regarded  as  the  results  of  custom,  as  recogiiitions  of  the 
practices  of  the  co;uinunity,  and  as  the  worded  outcome  of  observance.'  A 
custom  or  usage,  then,  vvhicli  if  iulinitted  would  contradict  the  commands  of  a 
statute,  ought  to  be  rejected  for  two  reasons:  First,  because  it  is  a  violation  of 
the  written  law,  wliich  is  made  to  be  followid,  and  not  evaded  or  disobeyed; 
and,  second,  liecause  any  otlier  rule  would  be  to  recognize  inconsisteni  cus- 
toms, wliich,  as  wo  have  seen,  is  nt  ver  done.**  Said  .Jamks,  V.  C,  in  an  ngiisli 
case:  "  Tliis  is  a  custom  wliich  tends  to  alter  the  character  of  tlie  interests  in 
land  belonging,  respectively,  to  the  plaintiffs  and  defendants,  tliere  being  e^  press 
legislation  that  every  interest  in  land  shall  be  created  by  writing.  No  doubt 
this  court  has  in  several  cases  found  means  to  avoid  or  evade  tlia'.  rule  of  the 
legislature.  I  appreiiend,  however,  that  that  is  not  a  thing  to  be  extend  d. 
It  appears  to  me  to  be  the  duty  of  every  court,  whetlier  a  court  of  equity  or  a 
court  of  law,  to  give  effect  to  tlie  plain  meaning  of  the  legislature,  whatever 
may  be  the  views  entertained  of  its  policy  or  applicability  in  particular  cases. 
I,  therefore,  should  be  v(iry  slow  to  extend  anything  l)y  whicli  interests  in  land 
can  be  created,  affected,  or  altered  by  parol,  or  by  any  supposfid  convention 
existing  by  the  understanding  of  tlie  parties."  A  custom  or  usage  repugnant 
to  a  statutory  euactnuMit  is,  therefore,  void.* 


i 


•  Union  Biiiik  c  Forrest,  3  Craiicli  C.  (Jt. 
21ij. 

'  Richmond  o.  Smith,  8  Barn.  &  Cress.  9. 
3  StcbbiHH  V.  Urowii,  65  Uurb.  ■274. 

*  "The  words  'city  engineer,'  in  .'i  con- 
tract," said  the  court,  "arc  nmrely  descriptio 
persona.  His  duties  in  regard  to  ine;4sure- 
meiit  were  pretusuly  what  those  of  any  other 
engineer  would  have  been,  if  anetlier  liad 
btien  agreed  upon.  IIo  liad  no  power  of  fiiU- 
Rtitutlon.  And  althougli  Hit;  performance  of 
the  work  undoubtodly  reciuired  the  aid  of 
Hurvants,  thoy  must  have  acted  under  his 
dituct  peraouul  supervision,  and   bo  must 


have  had  personal  knowItMlt;u  of  what  wns 
done."    Pahner  v.  Clark,  lOii  Mass.  37.'t. 

•"'  Ante,  Chap.  I.,  §  1;  Browne  on  Usage--  & 
Customs,  27. 

"  Ante,  Cliap.  I.,  §  Vi. 

'  Daiin  y.  City  of  London  nrcwiryCc,  F.. 
R.  8  K(i.  155. 

■*  Winter  v.  Unitod  States,  llempst.  :5II; 
The  Lucy  Anno,  13  I.,aw  IJep.  (n.  ».).'J15;  l-ove 
V.  Hinckley,  Abb.  Adm.  4;;(i;  Maury  r.  Ituek- 
man,  9  Paige,  18H;  Hall  v.  Keed,  2  Karb.  (  li. 
500;  Coleman  ir.  Mc.Murdo,  r>  Uand  51.  But 
see  (iovernor  v.  Witliers,  5  (.'latl.  it ;  Itrowii 
V.  Farrar,  3  Ohio,  150;  Muuiei'  b.  Uariuuo,  29 
Ohio  St.  'HO. 


p 


454 


WmON    IN    CONFLICT    WITH    CONTRACTS,  KTC. 


Acts  of  Parliament  —  Contrary  Usiii^es. 


UtM 


§217.  Words  defined  by  Act  of  Parliament  —  Contrary  Usagres  void. -- 
It  follows  that  the  admissibility  of  Uw  evidonco  of  ciisuom  to  explain  tin-  mciiii- 
ing  of  a  word  used  in  any  contract  whatever,  is  siihjoct  to  the  qualification  that 
if  a  statute  has  given  a  definite  meaninii  to  any  particular  word,  it  must  \w. 
understood  to  have  been  used  with  that  meauiiis,  lud  no  evidence  of  custom 
will  be  admitted  to  attach  any  other  moaning  to  it.  Thus,  by  statute,  words 
denoting  weights,  measures,  and  numl)ers  liave  frequently  been  defined.  Then - 
fore,  in  one  case,  "bushels"  was  held  to  meiin  only  statute  bushels.'  In 
another,  "  quarters  of  (rorn "  was  understood  to  mean  legal  (juarters.-  In 
Hughes  v.  Hump  fire  ;fs,'  the  statute  .'>  &  (5  Wm.  IV.,  st.  G,  c.  fiS,  which  al)olishes  in 
England  all  local  or  customary  uie.isures,  and  imposes  a  penalty  on  every  person 
who  shall  sell  by  any  denomination  or  measure  other  than  one  of  the  imperial 
measures,  or  some  multiple  or  aliquot  part  thereof,  was  held  to  apply  only  to 
the  sale  by  measure  of  capacity,  and  not  to  sale  by  weight  estimated  in  pounds; 
and  that,  therefore,  it  did  not  extend  to  sale  by  any  local  term  designating  a 
given  number  of  pounds'  weight.  As  to  sale  of  wheat  by  Welsh  "  hobbett,"  it 
appeared  by  evidence  that  this  designated  one  hundred  and  sixty-eight  pounds 
weight,  and  tliat  a  sale  by  "  hobbett"  entitled  the  jmrchascrtoso  many  pounds  of 
wheat.  And  in  anotlier  case,  a  contract  for  the  sale  of  a  certain  number  of  tons 
of  iron,  "long  weight,"  was  held  not  to  be  a  contravention  of  the  statute,  ami 
that  consequently  such  a  contract  was  valid.  It  appeared  in  that  case  that  the 
fifteenth  section  of  5  (Jeo.  IV.,  c.  74,  was  not  repealed  by  the  act  alluded  to,  and 
that,  therefore,  contracts  by  local  weight  might  be  lawfully  made  if  the  propor- 
tion to  the  standard  was  expressed.*  Thus,  in  the  leading  case  of  Noble  v. 
Durell,^  it  was  held  by  the  Court  of  King's  Bench  that  where  a  statute  declared 
that  every  pound  of  butter  should  weigh  sixteen  ounces,  a  custom  that  they 
.should  weigh  eighteen  ounces  was  bad.  So,  where  a  statute  of  Missouri  pro- 
vided, "  The  hundred-weight  shall  consist  of  one  hundred  pounds  avoir(lui)ois, 
and  twenty  such  hundreds  shall  constitute  a  ton,"  it  was  held  that  evid(uice  that 
by  custom  or  mercantile  usage  a  •'  ton  "  of  hemp  consisted  of  twenty-four  hun- 
dred pounds,  instead  of  twenty  hundred,  was  not  admissible  to  interpret  a  con- 
tract in  which  G.  agreed  to  sell  to  M.  "thirty-five  tons  of  hemp  of  the  best 
quality."'*  Where  a  New  Hampshire  law  enacted  that  "all  round  tiinl)er,  the 
<|uantity  of  which  is  estimated  by  the  'housand,  shall  be  measured  according  to 
the  following  rule,  viz.:  a  stick  of  timl)er  sixteen  inches  iu  diameter  and  twelve 
inches  in  length  shall  constitute  one  cubic  foot,  and  the  same  ratio  for  any  size 
and  quantity;  each  cubic  foot  shall  constitute  ten  feet  of  a  thousand,"  a  loe:il 
usage,  known  as  the  Blodgett  measure,  which  allowed  at  the  rate  of  one  hun- 
dred and  fifteen  feet  for  a  thousand,  was  held  inadmissible.'  Where  a  stJitiite 
declares  that  "  two  thousand  pounds  shall  make  one  ton,"  a  custom  with  dealers 
in  pig-iron  to  buy  and  sell  by  the  gross  ton  of  two  thousand  two  hundred  and 
sixty-eight  pounds  is  inadmissible.* 


'  ffockin  V  Cooke,  4  Term  Rei».  :114. 
'■J  Master  of  Ht.  Orosa  t-.  Lord  Iluvvard  de 
Waldeii,  G  Term  Rep.  338. 
'  3  El.  &  Itl.  '.)H. 
*  Giles  V.  Jones,  11  Bxch.  393. 


f'  Ante,  p.  420. 

«  Ureeii  t'.  Moffett,  22  Mo.  529. 
7  IloKcrs  V.  Allen,  47  N.  11.  529. 
«  RvitiKs  V.  Myers,  'i'l  I'a.  St.  114;  Weaver 
V.  Fegoly,  2'J  Pa.  St.  27. 


USAGES    AND   STATUTES. 


ioi> 


Offices  and  Officers. 


;  218.  Statutes  as  to  OfBcers'  Duties — Inconsistent  Usages.  —  Where  uii 
o  licer's  duties  are  prescribed  by  statute,  usage  will  uot  excuse  their  discUiirije  in 
ii  (iifferent  manner.    Thus,  where  ^  statute  required  the  demand  of  acceptance  or 
|i;iyment  of  a  bill  of  exchansie  to  be  made  in  a  certain  manner,  a  custom  anions 
ii'itarios  in  the  city  of  New  York  to  make  a  demand  in  a  different  manner  was 
liild   inadmissible.'     Where  a  statute  described  certain  ^.rison  limits  beyond 
which  prisonLTS  should  not  be  allowed  to  go,  a  contrary  usage  was  held  l)ad.- 
And  where  a  statute  prohibits  highway  surveyors  from  engaging  labor  without 
the  express  authority  of  the  board  of  selectmen,  a  contrary  usage  is  bad. '     Where 
the  United  States  statutes  reiiuire  the  licenses  of  vessels  to  be  renewed  at  a 
certiiin  time,  under  a  penalty,  a  custom  for  purchasers  to  await  thi-  dose  of  navi- 
gation before  making  application  for  a  renewal  will  be  no  protection.'     And 
wliere  the  capital  stock  of  a  foniign  manufacturing  corporation  was  re(|uired  to 
hi-  taxed  at  its  full  value,  the  usage  of  the  assessors  to  make  certain  deduct  ions 
was  rejected.      In  another  case,  tiie  defendants  were  street-sprinklers,  and  were 
sued  for  an  injury  caused  by  the  plaintiff  falling  on  a  piece  of  ice  which  had 
formed  from  water  escaping  from  a  hydrant.     A  city  ordinance  recjuired  that 
persons  liolding  such  licenses  as  defendants  bad  should  make  their  own  attach- 
ments for  lining  their  water-carts,  and  keep  tlieir  attachments  in  repair.    Tlie 
water  was  shut  off  in  November,  and  the  accident  occurred  in  the  succeeding 
month.     On  the  trial,  the  defendants  offered  to  prove  a  custom  among  street- 
sprinklers  that  at  tlie  close  of  the  season  for  sprinkling  the  streets,  when  the 
water  was  supposed  to  be  shut  off,  the  boxes  and  pipes  were  not  visited  until 
the  opening  of  the  season  in  the  spring.    The  evidence  was  held  inadmissible.- 
An  officer  being  required  by  law  to  execute  his  duties  in  a  cerUiin  manner,  a 
custom  that  he  may  execute  them  in  a  different  manner  will  not  be  recogni/cii; 
am)  this  is  so,  even  tiiough  he  believes  that  the  duties  cannot  be  satisfactorily 
executed  in  the  manner  prescril)ed.-    In  Delaplaine  v.  Hoxall,''  a  statute  of  Vir- 
ginia relating  to  the  insitcction  of  Hour  provided  as  follows:  "Every  inspector, 
by  himself  or  a  deputy,  shall  attend,  when  required,  at  such  time  an  i  place 
within  his  county  or  inspection-district  as  the  owner  of  any  commodity  of  which 
he  is  inspector  may  appoint,  and  examine  such  commodity,  by  boring  through 
the  liead,  in  case  of  a  barrel,  with  an  auger  uot  exceeding  lialf  an  inch  in  diam- 
eter," etc.     An  inspector  claimed  the  right,  by  custom,  to  use  a  larger  auger, 
for  the  reason  that  the  auger  prescribed  was  too  small  in  size.     But  the  court 
refused  to  recognize  the  alleged  custom,  saying:  "As  to  the  size  of  the  auiier 
which  tlie  inspector  of  flour  Is  pennitted  to  use,  I  think  there  can  be  no  real 
question.     It  is  true  that  the  inspector  avers,  in  his  return  to  the  writ,  tiiat  he 
cannot  make  a  satisfactory  inspection  by  boring  with  an  auger  of  no  greater 
diameter  than  half  an  inch,  and  that  it  had  always  been  the  custom  ot  ttie 
inspectors  to  bore  with  an  auger  of  greater  diameter,  such  as  he  had  been  in  the 
liabit  of  using.     But  the  averment  that  tlie  inspection  could  not  be  made  in  a  sat- 
isfactory manner  with  a  half-inch  auger  was  one  which,  I  think,  it  was  uot  coiii- 


'  Oftego  Connty  Bank  v.  Warren,  18  Ilarb. 
^;  Commercial  Bank  t>.  Varnuin,  :\  Laus. 
90. 

'  Trull  V.  Wheeler,  19  Pick.  240. 

*  Scribncr  i\  Uollis,  48  V.  H.  30. 


*  The  Forrester,  Ncwb.  Adm.  81. 
Dwight  r-.  Mayor   of  BoBton,  12   AIIimi> 


316. 


"  (^rocker  v.  Schureman,  7  Mo.  App.  ;16"<. 
V  1.5  tiriitt.  459. 


456 


WHKN    IN    CONrLICT    WITH    CONTRACTS,  ETC. 


Statutes  Concerning  Officers'  Duties  and  Omipcnsiiiiou. 


t 


J- 


petent  for  the  inspector  to  mal^c.  The  law  had  ascisrtaiiKMl  that  a  sati-factiny 
inspection  could  be  made  with  such  an  instrument,  ami  it  was  not  fur  liini  to 
gainsay  it.  And  it  is  in  vain  to  appeal  to  custom  to  justify  so  pi:iiii  a  deviuiion 
from  the  requirement  of  tl)e  statute.  Much  of  what  has  been  said  upon  the 
other  branch  of  this  case  will  apply  on  this  point  to  this,  and  I  shall  not,  tliirc- 
fore,  repeat  it.  I  will  content  myself  with  saying  that,  in  my  judgment,  this  stiu- 
ute  needs,  and  will  admit  of  no  resort  to  a  usage  or  custom  for  its  interpretati')!). 
To  adopt  it  would  be,  not  to  construe  the  law,  but  to  set  up  something  in  direct, 
contravention  of  its  provisions.  Tlie  restriction  upon  the  size  of  the  auvi;(;r  was 
most  probably  intended  to  limit  the  loss  that  might  unavoidably  occur  in  the 
process  of  inspection,  tlirongli  injury  to  the  surrounding  mass  by  the  adnilssicni 
of  air  and  weakening  the  head  of  the  barrel,  and  parties  are  as  much  entitled  to 
have  it  respected  as  any  other  requirement  of  the  act;  and  if  the  inspector  will 
persist  in  disregarding  it,  any  party  aggrieved  is  clearly  entitled  to  the  mandamus 
to  enforce  it." 

A  custom  which  gives  to  a  public  officer  a  portion  of  the  goods  of  tlio  citizen 
with  which  he  is  called  upon  to  deal  in  the  discharge  of  his  office,  by  way  of 
additional  compensation  or  perquisite  over  and  above  what  the  law  expres-iy 
l)rovides  as  his  fee,  is  bad.  Thus,  wliere  an  inspector  of  flour,  who  under  a 
statute  of  Virginia  was  allowed  a  certain  money  compensation  for  his  serviee^, 
sought  to  establish  a  custom  among  fiour  inspectors  in  that  State  to  take  to 
their  own  use,  in  addition  to  the  legal  fees,  the  flour  drawn  from  the  harrol  iu 
process  of  in-'>eotion,  called  the  draught  flour,  the  court  refused  to  sanction  it, 
as  both  unreasonable  in  itself  and  contrary  to  tlie  statute  creating  the  ol'ce  and 
providing  the  compensation  thereof.'  "  The  custom,  it  seems  to  me,"  said  Li:i;, 
J.,  "  is  also  bad  because  in  conflict  with  the  general  policy  of  the  law,  and  this 
in  several  respects.  It  is  certainly  a  marked  feature  in  our  system  of  olflces 
that  the  com|)ensation  of  public  functionaries  shall  be  fixed  and  certain.  It  is 
a  great  and  pervading  principle  of  our  Code,  and  is  essential  to  the  purity  and 
impartiality  of  the  government.  The  idea  of  a  '  perciuisite  of  office,'  in  tlie 
sense  of  a  fee  or  allowance  for  services  beyond  the  ordinary  salary  or  settled 
wages,  has  no  place  in  our  legislation,  but  seems  to  be  repudiated  by  tlie  most 
necessary  implication.  Once  to  admit  it,  is  to  open  a  wide  door  for  imposition 
and  corruption.  Dr.  Webster  tells  us  that  the  common  acceptation  of  the 
word  in  America  is  a  fee  to  an  officer  for  a  specific  service,  in  lieu  of  an  anniial 
salary;  but  he  gives  also  the  other  sense  in  which  it  is  elsewhere  used,  'liie 
salaries  fixed  in  our  Code  for  some  officers,  the  specified  fees  for  seiviccs 
allowed  to  others,  and  the  penalties  imposed  in  some  instances  for  doinaiuliiiu 
fees  for  services  not  performed,  or  for  demanding  greater  fees  for  services  than 
those  allowed  by  law,  all  show  the  Intention  of  the  Legislature  that  the  coiii- 
pensation  to  the  officer  should  be  restricted  to  the  fees  expressly  provided.  In 
^he  inspection  laws  throughout,  the  fees  are  specifically  named,  and  the  ide"  of 
any  further  compensation  would  seem  to  be  plainly  excluded.  For  many  year-, 
indeed,  prior  to  17'.)2,  after  the  sum  named  were  added  tlie  words,  'and  no 
more,'  which  served  not  merely  to  limit  tlie  pecuniary  fee  to  be  paid  down.  l>ii, 
to  exclude  the  idea  of  any  other  compensation,  and  thus  discountenance  the 
custom  of  taking  the  draught  flour;  and  although  in  that  year  these  words  were 

'  Delaiilainc  r.  Orensfiaw,  15  Gratt.  IST. 


USAOKS    AND    STATUTES. 


457 


Offices  and  Off'uors. 


droppod,  it  was  riouhtlcss  because  they  wern  cleeiiuul  surplusaire,  the  idea  havhiL' 
been  sufficiently  expressed,  as  the  words,  '  to  bo  paid  down  by  the  owner,' 
found  in  previous  acts,  had  been  dropped  in  1787.  And  wiicn  the  present  Code 
tixes  the  inspector's  fee  at  one  cent  the  barrel,  it  can  iiardly  mean  to  give  as 
much  more  in  the  form  of  flour  as  the  inspector  may  tliinlv  it  necessary  to  take 
for  the  purpose  of  inspection.  Now,  altliough  a  custom,  wlien  otherwise  good, 
may  override  and  displace  the  common-law  rule,  yet  a  statute  introducing  a  new 
principle,  with  a  negative  either  express  or  necessarily  implied,  must  be  strictly 
pursued,  and  no  custom  can  be  set  up  against  it.'  And  such  is,  I  think,  the 
character  of  these  inspection  laws,  for  a  negative  to  any  other  coinpcMisation 
than  the  fee  expressly  given  arises  from  most  necessary  implication.  And 
although  a  custom  or  usage  may  be  invoked  to  interprei  a  statute  or  a  con- 
tract that  needs  interpretation,  where  something  is  to  be  done  not  sufficiently 
explained,  yet  where  there  is  no  doubt  or  ambiguity  it  cannot  be  resorted  to 
to  contradict  what  is  plain,  or  to  control,  vary,  or  adfl  to  or  diminish  what  is 
expressed  in  formal  and  deliberate  terms.'^  This  eu>toin  iilso,  as  it  seems  to  me, 
necessarily  contravenes  the  policy  of  the  provision  forbiddiiig  an  inspector  to 
trade  in  any  commodity  of  which  he  is  inspector.  For,  when  it  is  considered 
that  this  inspector  withdrew  for  his  own  benefit  very  nearly  sixty  thousand  pounds 
of  flour  on  the  inspections  for  one  house  within  a  period  of  seventeen  months, 
and  that  for  the  year  ending  June  30,  18'>8,  the  number  of  barrels  inspected  was 
six  hundred  and  fifteen  thousand  two  hundred  and  twenty-nine,  and  that  for  two 
quarters  only,  ending  December  31,  1858,  the  number  was  four  hundred  and  one 
thousand  seven  hundred  and  thirty-eight,  it  must  be  perceived  that  the  inspector 
becomes,  of  necessity,  a  large  dealer  in  the  commodity  of  flour.  It  is  true,  the 
section  authorizes  the  inspector  to  sell  any  commodity  which  he;  may  have 
received  in  payment  of  his  fees,  but  by  this  doubtless  is  meant  any  article  for 
which  he  agrees  that  the  fee  allowed  him  by  law  may  be  commuted.  1  cannot 
think  that  the  act  contemplated  anything  in  the  nature  of  a  perquisite  to  be 
received  in  kind  by  the  inspector,  over  and  above  the  fee  prescribed.  I  think  it 
a  sound  principle  of  construction  that  a  law  imposing  burdens,  like  any  act 
granting  privileges  in  derogation  of  common  right,  should  be  interpreted  favor- 
ably to  the  public,  and  if  there  be  even  reasonable  doubt  as  to  the  extent  to 
which  it  goes,  such  doubt  should  be  resolved  in  their  favor.  If  a  definite  and 
described  charge  be  made,  there  can  be  no  room  to  presuint  that  some  other 
and  further  burden  in  respect  of  the  same  subject  was  intended  to  be  imposed." 
In  Fi'dzie.r  v.  Warjield,'^  a  long-established  custom  had  existed  in  Baltimore  by 
which  the  weight  of  a  lot  of  wheat,  as  between  buyer  and  seller,  had  always 
been  ascertitined  by  weighing  one  bushel  in  sixty.  In  l>s58  the  Legislature  of 
Maryland  passed  an  act  to  regulate  the  inspection  of  grain,  which,  after  appoint- 
ing certain  inspectors  to  examine  all  wheat  in  the  city  of  Baltimore,  provided, 
among  other  things,  as  follows:  "That  the  said  inspectors  sliill  mN  >  carefully 
weigh  and  determine  the  weight  of  all  wheat  that  shall  be  insjn  ( di!  by  them  or 


'  Dwar.  on  Stats.  476, 477 ;  Lord  Ldvclucte's 
Ca>i",  W.  JoiiGR,  270 ;  Jo-»cs  v.  Smith,  2  Knist. 
W;  Ivinf?  i>.  lii^hnp  of  London,  Show.  41U, 
420;  9  Uac.  Abr.,  tit.  "Statute,"  U,  237; 
Soilgw.  oil  Still.  &  Const.  Law,  .18,  :il). 


2  1  Greenl.  on  Ev.,  §§  JJh.',  2!»:t,  and  caseh 
cited  ill  lilnckett  v.  Royal  Kxchango  A.ssur. 
Co.,2('roni|(.&,J.  244;  The  Kee8ide,2  Sumn. 
667  (opinion  of  >^tory,  J.). 

'  i;{  Md.  27.t. 


VK 


4^)H 


HHKN    IN   CONFLICT   WITH    CONTRACTS,  ETC. 


Statutes  as  to  Usury  —  Shipping  Articles. 


curried  to  tlie  city  for  sale,  and  for  that  purpose  shall  procure,  at  roiisoiitible 
•nd  proper  cost,  suitable  weights  and  scales  to  effect  the  purpose  herein  con- 
teraphiud."  The  question  was  whether  the  inspectors  could  continue  to  weitjh 
the  wheat  according  to  the  old  custom.  The  Superior  Court,  before  whom  the 
case  tirst  came,  decided  that  they  were  bound,  under  the  new  law,  to  weigh  tiie 
whole  parcel,  resting  its  decision  on  the  ground  that  tlie  old  mode  had  worked 
injustice  to  the  seller,  which  tlie  statute  was  passed  to  remedy,  and  thai  "all 
wheat,"  as  used  in  the  statute,  could  not  be  construed  to  mean  one-sixth  of  the 
wheat.  The  Court  of  Ap[)eals  reversed  this  ruling,  holding  that  the  act  was  not 
intended  to  iutrod  'ire  a  new  mode  of  weighing,  but  for  the  purpose  of  placiiig 
between  buyer  and  seller  an  impartial  officer  of  the  law.  As  the  only  (piestiua 
decided  in  thi-  case  was  as  to  the  iutention  of  the  Legislature  in  passing  the  act, 
and  ttieir  meaning  as  expressed  therein,  it  does  not  conflict  with  the  general  rule 
stated  at  the  beginning  of  this  section. 

§21!).  Statutes  prohibitingr  Usury — Contrary  Uaagres.  —  A  usage  to  lend 
and  borrow  money  at  a  higher  rate  of  interest  than  is  allowed  by  the  statute 
against  usury  is  void.'  Thus,  it  being  held  that  casting  interest  upon  the  prin- 
ciple that  thirty  days  are  the  twelfth  of  a  year,  sixty  days  the  sixth,  and  ninety 
days  the  fourth  of  a  j-ear,  and  the  three  days  of  grace  the  tenth  of  a  month,  ami 
discounting  a  note  upon  such  a  calculation,  is  usurious,  the  note  is  not  saved  by 
a  custom  among  banks  to  calculate  interest  in  this  manner.''  As  said  by  the 
chancellor  in  Dunham  v.  Goiild,^  "  It  is  perfectly  idle  to  talk  of  a  custom  among 
merchants  to  take  a  commission  above  the  legal  rate  of  interest  on  the  exchange 
of  notes.  Custom  of  merchants  is  not  applicable  to  such  a  case.  It  is  not 
matter  of  trade  or  commerce  witliin  the  law-merchant,  and  if  there  were  such  a 
local  usage  in  New  York,  it  would  be  null  and  void,  and  could  not  be  set  up  as 
a  prt'text  or  cover  to  trample  down  the  law  of  the  land.  The  money-lenders 
throughout  the  country  might  as  well  set  up  a  practice  of  their  own,  and  then 
plead  it  in  bar  of  the  statute."  And  the  statutes  concerning  legal  tender  cannot 
be  affected  by  the  local  usages  of  banking-houses.* 

<(  L'L'O.  Statutes  as  to  Shipping:- Articles  and  Carriers — Customs. — Instances 
of  customs  being  refused  by  the  courts  to  control  or  vary  acts  rerpdred  by 
statnte  to  be  performed  in  a  certain  manner,  are  to  be  found  in  the  case  of  ship- 
ping-contracts. A  United  States  statute,  for  example,  required  the  master  of  a 
-Inp,  under  a  penalty,  to  make  an  agreement,  in  writing  or  in  print,  with  every 
seaman  on  board  his  vessel,  declaring  the  voyage  and  terms  on  which  the  seaman 
was  shipped.  In  Bogert  v.  Cauman,  the  plaintiff  was  mate  of  a  ship  commanded 
by  tlie  defendant,  but  during  the  voyage  he  was  degraded  by  tlie  captain,  and 
compelled  to  leave  the  ship.  To  prove  the  damages  sustained,  his  counsel  intro- 
duced the  shipi)ing-articles,  from  which  it  appeared  that  he  was  to  receive  $40  a 


'  Dunliam  v.  I)ey,  13  Johns.  40;  Dunham 
V.  Gould,  16  Johns.  .'.(iT;  Greene  v.  Tyler,  39 
Pa.  St.  361;  Jones  r.  McLean,  18  Ark.  456; 
N'iagura  ('ounty  Itauk  v.  Baker,  15  Ohio  St. 
66.    And  see  Kloycr  v.  KdwanlJ,  Cowp.  112. 

-New  York  t'ircinen's  Ins.  Co.  w.  Kly,  2 


Cow.  678 ;  Bank  of  Utica  v.  Wager,  2  Cow. 
712. 

3  16  Johns.  367. 

*  Marine  Bank  v.  Kuahm»ro,  28  HI.  463; 
Marine  Bank  v.  Birney,  28  111.  90;  Marine 
Bank  v.  Ogden,  29  111.  249. 


USAOKS    AND   STATUTES. 


459 


at  rciisotmhle 
;♦?  h«r<;i?)  <on- 
inue  to  wei^h 
are  whom  the 
,  to  wci^li  the 
le  had  worked 
and  that  "all 
le-sixth  of  tlie 
\c  act  was  not 
jse  of  pliiciiisi 
only  questioQ 
aaslna;  the  act, 
le  "CQeral  rule 


usage  to  lend 
by  the  statutes 
upon  tlie  prin- 
;tli,  and  ninety 
i  a  raontli,  ami 
is  not  saved  by 
As  said  by  the 
custom  among 
n  the  exchange 
ise.  It  is  not 
re  were  such  a 
ot  be  set  up  as 
money-lenders 
own,  and  then 
tender  cannot 


as.  —  Instancefl 
ts  re(|iiired  by 
e  case  of  ship- 
he  master  of  a 
int,  with  every 
Ich  the  seaman 
lip  commanded 
le  captain,  and 
counsel  intro- 
[)  receive  $40  a 


Miscellaneoii-i  Cases. 


I.  Wager,  2  Cow.  | 


,,.ro,  28  111.   163; 
III.  90;  Marine 


month  as  first  mate.  He  then  attempted  to  prove  that  he  was  also  to  have  a 
et-rtain  privile<re.  Thompson',.!.:  *' The  testimony  is  inadmissible.  You  have 
produced  a  written  contract,  and  all  previous  parol  aureements  are  morn;ed 
in  it."  He  then  offered  to  prove  tliat  it  was  the  established  usaue  of  the  city 
to  allow  this  privilei^e,  and  that  it  was  never  expressed  in  the  articles.  But 
Tiio.MPSON",  J,,  rejected  this  evidence  also.'  Similar  questions  have  been  decided 
in  tlic  same  way  in  England,  and  on  the  same  ground,  viz. :  of  the  contract  in 
<|uestion  being  one  under  a  statute.  In  The  Isahefhi,-  the  representative  of  the 
cliief  mate  (he  having  died  during  the  voyage)  demanded  wages  under  the  ship- 
ping-articles on  a  voyage  from  London  to  the  coast  of  Africa,  and  from  thence  to 
liie  West  Indies,  and  also  an  additional  sum  as  the  value  of  a  privilege  of  one 
slave,  said  to  be  part  of  the  agreement,  and  a  privilege  due  under  the  ordinary 
practice  of  that  trade.  But  the  court  rejected  that  part  of  the  petition  claiming 
tlie  privilege,  ob.serving  that  if  any  such  understanding  existed  between  the  par- 
ties, care  should  have  been  taken  to  have  had  it  inserted  in  the  articles;  that,  the 
articles  being  required  by  .statute,  it  was  impossil)le  to  set  up  a  demand  of  this 
collateral  nature  and  to  support  it  on  the  plea  of  a  eustomary  right.  So,  iu 
[Vliite  V.  Wilson^  tlm  chief  mate  claimed,  on  a  similar  voyage,  the  value  of  a 
similar  privilege,  which  was  rejected.  Lord  Kldon  saying:  "If  the  legislature 
have  decided  that  all  agreements  for  wages  shall  be  in  writing,  and  the  practice 
be  not  to  put  in  writing  contracts  for  the  price  of  one,  two,  or  more  slaves,  that 
practice,  if  allowed  to  prevail,  may  be  made  the  means  of  evading  the  provisions 
of  the  act." 

A  statute  of  Iowa*  provided  that  "  no  contract,  receipt,  rule,  or  regulation 
-^hall  exempt  any  corporation  engaged  in  transporting  persons  or  property  by 
railway  from  liability  of  a  common  carrier  or  carrier  of  passengers,  which  would 
exist  had  no  contract,  rule,  or  regulation  been  made  or  entered  intf)."  A  cow 
was  shipped  on  the  defendants'  road,  to  be  carried  from  Solon  to  Iowa  City. 
The  animal  was  an  imported  tlioroughbred  sliort-horn,  and  was  injured  in  transit 
by  the  negligence  of  the  employees  of  the  road.  In  an  action  for  the  injury,  the 
defendants  offered  to  prove  that  it  was  the  custom  of  all  the  railroads  in  the 
Stiite,  including  the  defendants',  not  to  be  liable  for  blooded  stock  beyond 
the  value  of  common  stock.  This  evidence  was  excluded,  and  properly,  as  was 
held  on  appeal.  "The  contract,  rule,  or  custom  sought  to  be  established,"  said 
RoTHWiCK,  J.,  "is  therefore  void,  under  sect.  1308  of  the  Code,  which  provides 
that  'no  contract,  receipt,  rule,  or  regulation  shall  exempt  any  corporation 
engaged  in  transjiorting  persons  or  proixjrl y  by  railway  from  liability  of  a  com- 
mon carrier  or  carrier  of  i)assengers,  v>b.ieh  would  exist  had  no  contract,  receipt, 
rule,  or  regulation  been  made  or  entered  into.'  The  rights  of  the  partfes  are 
I)recisely  the  same  under  this  statute  as  though  no  rule,  custom,  or  contract 
existed,  and  the  court  properly  refused  to  admit  the  offered  evidence,  and  cor- 
rectly Instructed  the  jury  that  the  defendant,  as  a  common  carrier  of  live  stock, 
was  bound  to  receive  and  ship  the  cow  in  question.  It  is  argued  that  the  value 
of  high-bred  cattle  is  not  fixed  and  determinate,  but  is  purely  fanciful,  and  that 
there  is  no  obligation  upon  the  carrier  to  carry  this  particular  class  of  stock,  not 
in  use  for  commercial  purposes,  and  that  therefore  the  rules,  custom,  and  con- 


W 


i-  ■ft 

'■  ^  I 


'  Anih.  97. 

0  2  Uob.  Adm.  199 


«  2  r.o8.  A  Pul.  H6. 
«  Code,  §  1308. 


.^ 


if 


?flw< 

II 


'  ii 


!     ■ 


I    I 


460 


WHEN    IN    CONFLKT    WITH    CONTKACTS,  ETC. 


Miscellanoniis  Statutes  and  Hepn^imnt  Usages. 


tract  limiting  liability  are  just  and  reasonable.  But  It  will  not  do  to  say  that 
the  value  of  all  cattle  is  the  same,  and  that  tliey  are  worth  so  much  per  iioiind. 
The  fact  that  there  is  not  so  general  a  raari<et  for  hiiih-bred  cattle  as  there  i>  for 
common  stock  is  not  a  criterion  by  which  it  may  be  said  that  the  one  is  as  valu- 
able as  the  other.  The  value  of  a  thing  is  what  it  will  ordinarily  sell  for  lo 
persons  who  are  accustomed  to  dealing  in  that  class  of  property,  and  who  desire 
to  purchase.  Such  a  rule  would  be  wholly  impracticable  in  its  appIicMitioii; 
besides,  as  we  have  found,  it  is  in  direct  conflict  with  the  statute."'  And  a 
railroad  company  cannot  establish  a  valid  custom  inconsistent  with  the  spuit 
and  object  of  its  charter.' 

§  221.  Miscellaneous  Statutes  and  repugnant  Usages.  —  The  provisions  of  a 
statute,  tliat  "  if  three  or  more  persons  shall  do  an  act  in  a  violent  and  tumiilluoiis 
manner,  they  .shall  be  deemed  guilty  of  a  riot,"  cannot  be  evaded  by  .sliowiiii: 
that  the  parties  chargoil  with  violating  them  were  but  acting  in  accordance'  w'lli 
the  custom  of  the  country.'  Where  a  statute  provided  that  all  sales  of  spirit uoiis 
and  intoxicating  liquors  should  be  made  for  cash,  a  custom  among  merchants  io 
sell  them  at  a  thirty  days'  credit  is  inadmissible.*  Wiien;  a  statute  providt . 
that  on  all  negotiable  promissory  notes  payable  ac  a  future  day  certain,  in  \vhi(  ii 
there  was  no  express  stipulation  to  the  contrary,  days  of  grace  should  i)c 
allowed,  a  usage  among  banks  not  to  allow  days  of  grace  was  rejected.  "  If  this 
custom,"  said  Shaw,  C.  .J.,  "existed  before  the  statute  was  passed,  the  statiiic 
did  away  with  the  effect  of  it.  If  it  has  grown  up  since,  it  was  bad  in  the  lli>i 
instance,  and  in  every  repeated  instance,  and  cannot  be  made  good  l)y  lime." 
And  where  a  statute  provides  that  "all  bonds,  contracts,  and  writings  for  tlic 
payment  of  money  or  otlier  thing,  or  the  performance  of  any  act  or  duty,  aru 
a.ssignable  by  indorsement,"*  a  custom  of  dealers  in  cotton  to  transfer  wart- 
house-receipts  by  delivery  is  bad.'  A  custom  tliat  if  fish  caught  within  the  Stale 
of  Michigan,  and  sold  in  barrels  to  a  dealer  without  express  warranty,  proM'  i;i 
be  unsound,  the  seller  shall  refund  the  price,  it  is  held  in  Michigan,  tend.-  to 
defeat  the  purposes  of  the  inspection  law  of  the  State,  and  is  therefore  batl.^ 
Where  a  statute  as  to  partition  fences  requires  Jliat  they  shall  be  such  "as  u'ood 
husbandmen  generally  keep,"  evidence  that  although  a  fence  was  not  such,  yet  it 
was  a  customary  one  for  the  particular  locality,  is  inadmissible.'  Where  a  st;ii  utc 
prohibited  all  work  on  the  Sabbath  day,  except  works  of  "necessity  or  mercy,' 
it  was  held  that  a  barber's  apprentice  could  not  be  compelled  to  work  on  thai 
day,  notwithstanding  it  was  the  cust(mi  among  the  great  body  of  nu'(liaiik>. 
common  laborers,  and  sea-faring  men  in  the  place,  to  resort  to  l)arbers'  slioi)s  to 
be  sliaved  on  Sunday  morning."*  In  a  recent  Peimsylvania  case,"  a  coal  company 
had  pumped  from  its  mines  a  quantity  of  water,  which  polluted  a  |)re\  i(m>iv 


'  McCime  v.  IJurlington,  etc.,  B.  Co.,  Sup. 
Ct.  Iowa,  I87S). 

-  CliicaKO,  etc.,  R.  Co.  v.  Tlie  People,  66 
111.  3(«. 

3  liankus  v.  The  State,4  Ind.  114. 

*  "  No  usage  respecting  the  dealings  ol 
merchants  in  the  sales  of  ordinary  merchan- 
dise, the  trainc  in  which  is  lawful,  and  the 
prullts  of  wln<;h  are  not  limited,  can  have 
any  influence  in  controlling  an  express  pro- 


vision of  statute."  Shaw,  C.  J.,  in  .Maii^liild 
V.  Inhabitants,  15  Gray,  149. 

6  Perkins  v.  Franklin  i;ank,  21  Pick.  48o. 

•  Rev.  Code  Ala.,  §  1S3S. 

'  Luliinan  v.  Marshall,  t"  Ala.  litii. 

8  Trcmljle  v.  Crowell,  IT  Mi(di.  493. 

»  Uli/./ard  v.  Walker,  32  Ind.  137. 

w  Phillip.s  V.  Innes,  4  (1.  &  Fin.  ■^34. 

"  Pennsylvania  Coal  Co.  v.  Siiuderson, 
Sup.  Ct.  Pa.  1880. 


U.SAOE8    AND    STATUTES. 


461 


Misc'ollnncous  Cases. 


do  to  say  that 
di  per  |Kiiiii(l. 
as  there  i>  fur 
jne  IH  as  vali;- 
lly  sell  for  U) 
nd  who  desire 
s  appliejilion ; 
lite." '  Ami  a 
vitb  the  splilt 


provisions  of  a 
nd  tuinulluoiis 
,ed  by  sliowin;: 
ccordanc."'  wnii 
csof  spirilumis 
,<r  iuerchiiiu>  \o 
atute  provuUi 
irtain,  in  whjrii 
:'ace  should  ln' 
.'ctcd.    "Iftlii> 
sed,  the  statu tc 
bad  ill  the  tii.M 
|)0(1  by  time." 
'riliniis  for  the 
let  or  duty,  are 
transfer  warc- 
ithin  the  Stale 
anty,  prove  to 
ix-.m,  tends  to 
therefore  bad.'" 
such  "  as  nooil 
not  such,  yet  it 
(Vhere  a  statute 
sity  or  mercy,"' 
,o  work  on  thai 
of   niechanie-. 
rbers'  shops  to 
[I  coal  coni|iany 
d  a  previou-l.\ 

3.  J.,  in  Man:-liilil 

nk,  21  Pick.  4&J. 

Ala.  :Ui-2. 
Mieli.  493. 
lui.  I!7. 
,  Fill.  234. 


i 


l)ure  stream  of  the  plaintiff's,  into  wliich  it  found  Its  way.  In  an  action  therefor, 
it  was  contended  by  tiie  defendant  that  the  customary  mode  of  disposing  of 
water  pumped  from  the  mines  in  that  region  had  always  been  to  allow  it  to 
flow  into  the  adjacent  natural  watercourses  and  proof  of  such  a  custom  was 
offered.  But  it  was  held  in  the  Supreme  Court  that  the  custom  would  not 
help  the  defendant,  and  was  of  no  effect,  for  three  distinct  reasons.  "As  a  -jcen- 
iral  custom,"  said  Gokdon,  J.,  "it  lacks  the  necessary  a^e;  for  the  bcijinnin'j;  of 
deep  coal-mining  in  the  regions  above  named  is  quite  within  the  memory  of  men 
yet  living.  Wanting  this,  it  fails  in  a  particular  essential  to  the  establishment 
of  such  a  custom.  But  more  fatal  still  to  the  defendant's  ijretension  is  the  fact 
that  the  effort  is  thus  to  justify  the  di.sturbance  of  private  property  for  the 
advancement  of  the  private  Interests  of  the  defendant  corpomtiou;  and  that  not 
under  the  plea  of  an  ancient  custonnvry  use,  arising  before  the  plaintiff  acquired 
title,  but  of  a  general  custom  which  would  authorize  the  present  injury  or 
destruction  of  tlie  riglits  of  riparian  owners.  But  a  custom  such  as  tliis  would 
not  only  be  unreasonable,  but  also  unlawful,  and  therefore  worthle>--.  It  is 
ui-ged  that  mining  cannot  be  carried  on  without  tins  outflow  of  aei  Inlous  water; 
hence,  of  necessity,  the  neighboring  streams  must  be  polluted.  This  is  true;  and 
it  is  also  true  that  coal-mining  would  come  to  nothing  without  roads  upon  which 
to  transport  the  coal  after  it  is  mined;  therefore,  roads  are  neces.>^ary;  but  it 
does  not  follow  that  for  such  purpose  the  land  of  an  adjacent  owner  may  be 
tidu'U,  or  his  right  of  way  encumbered,  without  compensation.  If,  indeed,  the 
custom  set  up  were  to  prevail,  thtm,  at  least  so  far  as  coal-mining  companies  are 
concerned,  there  would  be  an  abnjgation  of  the  eighth  section  of  .\rt.  XVI.  of  the 
Constitution,  whieh  provides  that  'municipal  and  other  corporations  invested 
with  the  privilege  of  taking  private  property  for  public  use  shall  make  just 
compensation  for  property  taken,  injured,  or  destroyed  by  the  construction  and 
enlargement  of  their  works,  highways,  or  improvements.'  Not  only  would  we 
thus  have  a  custom  superior  to  the  supreme  law  of  the  land,  but  one  reaching 
even  beyond  the  possible  sovereignty  of  the  State,  in  that  it  would  empower 
private  persons,  for  private  purposes,  to  injure  or  d<!stroy  private  property,  and 
that  without  compensation.  A  custom  such  as  this  is  radically  bad,  and  cannot 
bo  sustained.''  In  a  Massachu.setts  case,  a  servant  was  injured  by  the  explosion 
of  a  .steam-boiler  in  his  master's  manufactory.  A  statute  required  all  steam- 
boilers  to  be  provided  with  a  fusible  safety-plug.  The  defendant's  boiler  was 
not  so  provided;  but  in  an  action  brought  by  the  servant  to  recover  damages  for 
the  injury,  alleging  that  the  injury  was  caused  by  the  want  of  a  |)roper  gauge 
and  similar  appendages,  the  defendant  sought  to  show  that  it  was  not  customary 
.tniong  persons  having  in  use  such  boilers  as  his,  and  in  such  establishments  as 
Ills,  to  use  the  fusible  safety-plugs,  and  asked  an  instruction  that  if  bis  boiler 
was  supplied  with  all  such  appurtenances  and  appliances  for  safety  as  such 
istid)lishments  were  ordinarily  supplied  with,  he  was  not  liable,  even  though  in 
faet  he  did  not  have  tlie  boiler  supplied  with  the  statutory  safety-plug.  In  the 
Supreme  Court  it  was  ruled  that  the  court  below  had  rightly  held  tha  a  custom 
not  to  observe  the  law  could  not  be  shown.' 

'  Cayzer  v.  Taylor,  10  Gray,  410. 


4G2 


WmON    IN    CONFLICT    WITH    CONTRACTS,  KTC. 


StatutcH  Construed  by  UsuaKC 


§222.  Statutory  Bxemptions  cannot  be  waived  by  Uaapre.  —  Where  a  stfit- 
nte  lays  <l<>wii  a  certain  rule,  hut  prescribes  lliat  the  parties  may  coiitract  otii*  i- 
irlse,  a  usajje  will  not  tak*'  the  place  of  a  contract.  In  Walker  v.  TranHportdtim, 
Compiuiy,^  (jpi'icled  in  the  Siiprenie  Court  of  tiie  United  Stales  in  18(55,  tin;  |il:iiii- 
tiff  had  shlpp<Ml  ui>()n  one  of  the  defendants'  hoals  a  carjjo  of  ^rain,  whi(!h  was 
destroyed  by  fire  wliile  in  their  possession.  'I'iie  bill  of  ladinij  excepted  "pcriJN 
of  uavifjation,"  "perils  of  the  sea,"  and  otiier  similar  losses.  Hy  an  act  ni 
Congress  of  Wiireh  :?,  1861,'  the  owners  of  vessels,  in  case  of  loss  by  Hit,  ,ir 
exemi'ted  from  liability  "unless  snch  fire  is  caused  by  (lie  design  or  ikixIkI" 
of  siicii  owner«:  in  other  words,  they  are  not  liable  for  a  loss  by  lire  arl^^iii!: 
from  the  ne}j;li.ti<'i»!e  of  their  offlcers  or  a.iients.  There  Is  a  proviso  in  tin  mi 
that  it  shall  not  •'  |)revent  the  partic'^  from  making  snch  contracts  as  they  piciivc, 
extendinii  or  limiting  the  liability  of  such  owner."  The  loss  in  ([ueslioii  hiini.' 
caused  by  the  nei^lij^ence  of  the  defendants'  aj;<!nts,  the  plaintiff  endeavored  id 
Hhow  that  the  defendants  were  linble  under  this  proviso,  contending  tliat  tJK 
words  "  perils  of  naviiration,"  *'  jMrils  of  the  sea,"  in  the  bill  of  laUiuu,  In  iisii^r 
and  custom,  while  »^x(rusin,<i  the  carrier  from  accidental  losses  of  various  kiml>, 
still  held  him  liable  for  a  loss  by  lire  caused  by  the  ne,<ili<j;ence  of  his  servants. 
But  the  court  held  that  there  was  nothinjj;  in  the  lamjuase  of  the  words  jii>i 
cited  that  made  the  owner  liable  for  such  a  loss;  that  usa^e  could  not  add  to 
words  whieli  did  not  express  it  a  liability  from  which  the  act  of  (Joiiijress 
declared  the  defendants  to  be  free;  that  the  contract  mentioned  in  the  proviso, 
which  could  take  a  case  out  of  the  statute,  must  be  one  made  by  the  parties,  and 
not  by  custom  or  nsage  —  in  other  words,  an  express  contract. 


,4.1, 


I 


i<" 


i 


§  223.  Statutes  may  be  construed  by  Usasre.  — If  the  meaning  of  the  words 
of  a  statute  be  uncertain,  usa^e  may  be  resorted  to  for  the  purpose  of  in- 
terpreting them.  In  a  general  statute,  doubtful  words  may  be  ex|)laincil  by 
reference  to  general  usage.  In  a  statute  applicable  to  a  particular  place  only, 
ambiguous  words  may  be  construed  by  the  usage  at  that  place.'  In  the  exjila- 
natiou  of  doubtful  language  in  an  act  of  Parliament,  contemporaneous  and 
continuing  usage  has  always  been  much  relied  upon.'  Usage  has  been  fre- 
quently said  to  be  one  of  the  best  guides  to  the  construction  of  a  statute.^  In 
the  case  of  Magistrates  of  Dunbar  v.  Duchess  of  Roxburgh,^  it  was  expressly 
held  that  long  usage  is  of  no  avail  against  plain  statutory  eiiaettnents,  and  that 


such  a  usage  can  be  binding  on  parties  only  as  the  int  rpret< 


a  doubtfnl 


1  3  Wall.  150. 

■i  9  Stats,  al  Large,  635. 

■<  Frazier  v.  WarlleUl,  lii  Md.  279;  Love  v. 
Hinckley,  Abb.  Adni.  4:i7. 

I  Grant  on  Corp.  27;  Bank  of  Kngland  v. 
Anderson,  S  IJing.  N.  (-.  666;  Kex  v.  Scott, 
6  Term  ltei».  (>0» ;  Kex  v.  Aire,  etc.,  Nav. 
Co.,  2  Term  Itcp.  (MM;  Attorney-lieneral  v. 
Newcombe,  14  Ves.  18;  Mayor  v.  Long,  1 
Camp.  21:  Attorney  General  v.  Parker,  3 
Atk.57();  Attorney  General  r.  Foster,  10  Ves. 
:»5;  Karl  of  Buckingliamshire  i>.  Drury,  2 
Kden,  74;  Meriam  c.  Harsen,  2  Barb.  Ch. 
232;    McKeen    v.    Delancy,   9   Cranch,    32; 


Jackso  .jior,  2  Cow.  a*"     Ii'  Vci-ran 

V.  Pow  org.  &  R.  106. 

■•  Bii.  .  Cronk,  I   Halsl.  ll'.»;  Taylor  d. 

Griswolil,  .  C.  K  i.i-een,  222;  Tlie  Stale 
V.  Jensey  Ciiy,  4  ib.  108;  Polk  v.  Hill,  i 
Overt.  1,57;  Stevens  c.  i'oxe,  4  Pa.  st.  I'i; 
Bandel  v.  Isaac,  14  Md.  202 ;  Cameron  v.  .Mer- 
chants', etc.,  Bank,  37  Mich.  210.  "  The  uiii 
form  practice  under  this  and  similar  f tut 
utes  for  fifty  years,"  said  Redlleld,  J.,  in  mie 
case,  "is  a  matter  of  no  slight  wcMglii  in 
fixing  the  construction  of  a  statute."  Sher- 
will  V.  Bugbee,  16  Vt.  439. 

«  3  CI.  &  Fin.  3;». 


»TAIl  TK8    CONWIKUKD    HY    U8AOK. 


4().'( 


-  Wlit-ro  11  st.it- 
coiitract  ollici- 
TranKporttitidii 
1805,  the  |)l:iiii- 
•ain,  which  was 

tCf'ptt'd  "  I'lTlU 

By  nil   iicl.  (if 
OSS  by  tln\  iiT' 
iHii  or  nc:^liit "' 
by  tiro  arisiiiL' 
;)vlso  in  the  ui  t 
s as  they  jilia^c 
I  (luestion  t»i'hiL' 
E  oiKU'iivorcd  1(1 
ondiiv^  that  thr 
luilhii:',  hy  iisaur 
if  various  kiiul>, 
of  his  scrvuiit-;. 
[  tho  words  jii-i 
ould  not:  ;i<l(l  tn 
ict  of    (;o!i'4n'ss 
[1  in  t\w  proviso, 
y  tlie  parties,  and 


ing  of  the  words 

purposi-  of  in- 

jbi'  uxpi:iiniHl  hy 

cular  phuu;  only, 

3     In  tlie  (ixpla- 

IniporaiK'ous  and 

tc  lias  been  frc- 

f  a  statute.^    In 

it  was  expressly 

ncnts,  and  tliat 

a  dniihtful 

f.  S'     ti'  y^  ■''■'" 

lusl.  ll'.i;  Taylor  v. 
In,  '222;  Tlu'  Sl.itc 
\s;  Polk  r.  Hill,  ■; 
loxe,  4  Ph.  St.  i:r. 
I ;  Cameron  r.  Mcr 
jh.  ilO.  "Tlicuiii 
and  similar  stat 
lliedlleld,  J.,  i"  ""« 
sliglit  wfighi  in 
a  statute."    !*her- 


Municipal  Chartrrs  and  Powers. 


luw,  and  &h  uffordinij  u  confcmporancous  oxposltion;  but  that  wher»'  a  statute 
iH  expressive  as  to  .sonu-  points  and  silent  as  to  others,  usaRt"  may  will  supjily 
the  defects  if  nut  inconsisKMit  witli  the  expruHH  directions  of  the  .statute. 

§  224.  Municipal  Chartors  and  Powers  as  affected  by  Usaffh),  — In  FiH^iand, 
iiiiiniiiiMil  corporations  exist  and  excircist;  power  and  uullioriiy  hy  virtue  of  a 
loii;;-established  iisajjje  *ir  prescription;  which  supposes  :i  uriiiit  by  charter  or  act 
of  Parliament  which  has  liecii  lost.'  Many  cu.seH  of  customs  aff(!ctin<{  municipal 
corporations  are,  therefore,  to  be  found  in  the  books  which  are  of  no  sjtecMal 
iiilcri^st  in  tliis  country,  .•mil  of  no  practical  value — siicli  a«  cusioiiis  supporting 
monopolies;^  to  compel  the  olllcers  to  ^ive  u  dinner;*  to  compel  the  acciipt- 
iince  of  anoHice;*  to  enforce  penalties;  •■  to  rej^ulate  the  election  of  otHcers;* 
to  prove  the  exislciice  of  a  Ijy-lavv,'  or  the  tixistence  of  a  charier,'"  or  the  ri;;lit 
to  a  corporate  name''  With  respi-ct  to  the  means  of  arrivins?  at  the  jiioper  con- 
struction of  a  cliarter,  Mr.  Buuw.v  says : '"  "  The  b  st  means  that  i  im  be  resorted 
to  for  tlie  interpretation  of  charters  containing  dubious  or  obsi  ure  expressions 
Is  coritemporancoiis  iisaife,  for  optimus  iutcrprfu  reriim  imus;  /nd  luiitempo- 
laneous  usuye  i.s  always  admissible  for  ohtaiiiiug  the  true  irii,iMiti(>u  of  .such 
expressions,  and,  f^eiierally,  it  may  he  laid  liou  ii  that  thi;  uniform  course  of  mod- 
ern decisions  fully  eslablisln.s  the  rule  tliat  li(<wever  j;enerul  the  words  of 
ancient  iirants  may  be,  they  are  to  be  construed  by  evidence  of  the  manner  in 
wiiich  the  thing  granted  has  always  been  possessed  and  used."  But,  though 
usage  is  competent  to  explain  doubtful  exj)rc>sioiis  in  a  chart«?r,  it  is  not  .so  to 
elucidate  its  general  terms."  Tlie  word  *•  iuhabititnt,"  as  used  in  a  cliarter,  lias 
been  construed  by  usage.'-     .Vui  a  u.sage,  lnuvevor  ancient,  is  overthrown  and 


1  Dill,  on  Mun.  Clorp.,  chap.  H,  §  M. 

2  noHWorth  V.  Fiugdcii,  7  ModiM'ii,  4.')',). 
(Jolchester  v.  Goodwin,  ('jirt.  U7;  Player  v. 
.ToncM,  1  Vent.  21;  Itosworth  v.  Iloine,  2 
.Stra.  1085;  Player  v.  Veie,  T.  I{ay»i.  isfi; 
Bowdio  V.  Kenncll,  1  Wils.  2;K;  Tailor.'-  ol 
IJatli  f.  Ula/.by,  2  Wils.  2i;r. :  llairi><)ii  v. 
(jodin.'in,  1  Burr.  Kj;  lle-kctli  c.  I'.raddock, 
S  Burr.  1858;  Wooly  v.  Idle,  I  I'.urr.  1.t.)2; 
Kin;;  i;.  i^Joopers' (;o.,  7  Tenu  l.'ep.  .''>43;  King 
f.  Tappeuden,  3  East,  18(i;  (.liauktierlain  of 
London  v.  Oon)ptoii,7  Dow.*  Ity.  tldl ;  (Mark 
V.  Denton,  1  Barn.  &  .\dol.  ;i2;  (lark  r.  Lc 
Cren,  9  Barn.  &  Oe.ss.  .ii:  D.-tvis  v.  Morgan, 
1  Oromp.  &  J.  687;  Fazakciley  r.  \Till-liire,  1 
Stra.  KKi. 

•'Carter  r.  Sander.son,  ,5  IJinjj.  70;  Wallis' 
Case,  t;ro.  Jac.  ;">.")."). 

*  Grafton's  Cast;,  1  .Modern,  10;  Ilex  v. 
Grosvenor,  1  Wils.  18. 

•'  Clark  V.  Tucker,  3  Ll\ .  2S2 ;  l,ee  v.  Wal- 
lis, 1  Keny.  Cas.  27.');  Uex  r.  Fever.shain.  8 
Term  Hep.  :«»();  Player  v.  Vere,  T.  Itayin. 
I52S;  Uex  V.  Spoiieer,  3  Burr.  1839. 

'  Case  of  Corporations,  4  Coke,  77;  Uex  v. 
Atwood,  1  Nev.  &  .M.  286. 

'  Uex  V.  Tomlyn,  (^ases  temp.  Ilardw.  316; 
Rex  V.  Aliller,  U  Term  Hep.  280 ;  Uex  v.  West- 


W'Hiil,)  I'.arn.  &  Cri!*- -.  7S<.:  Taylor  ».  Gris- 
wiilil.2('.  K.  (i  roe  n,  ■.'-':; .  I'.rl.ins  w.  Cutters' 
Co.,  1  -ulw.  N'.  P.  nil. 

-  Town  of  Pawlel  r.  Clarke,  9  Cranoli, 
2'.)1 ;  DillinghMm  i>.  Snow,  7  .Ma>.'<.  .'547 ;  Stock- 
bridge  V.  West  Stock!)]  idjre.  12  Mass.  400; 
Bow  V.  Allensii)wn,31  N.  Il.:;.il ;  Elugcrstown 
Turnpike  (Jo.  v.  Creejrer,  3  liar.  A  J.  122; 
Shrewslmiy  v.  Hart,  1  Car.  &  P.  113. 

'■•  All  sainls'  Cliurch  v.  l.ovett,  1  Hall,  141; 
Trott  V.  Warren,  2  Fairf.  227  ;  Dutchess  (Cot- 
ton .M;in.  Co.  v.  Davi.s,  U  Johns.  2:!s  ;  Middle- 
sex llnshandTncn  r.  Davi8,3  Mete.  133;  Kobie 
V.  Sedgwick,  :$.")  Barb.  319. 

1"  Brown  on  (Jorp.  27. 

'1  Kex  V.Grant,  1  Barn.  A  Adol.  Ill;  With- 
nell  r.  (jartham,  G  Tijrin  Rep.  388;  Blankney 
tj.  Winftriiili'v,  3  Term  Rep.  279:  Davis  v. 
Wadijinglon,  7  .M.m.  &  (i.  42;  Governors  r. 
Scarlett,  2  You.  &  J.  ."30;  Bailiffs  v.  Brick - 
nell,  2  Taun.  120 ;  Rex  c.  .Johns,  Lofft,  77. 

•-  Hex  V.  Masiiiler,  I',  Ad.  A  K.  163;  Rex  v. 
Davie,  0  Ad.  &  b:.  :{74:  Withnell  v.  (iarlhani, 
6  Term  Rep.  398;  Attorney-General  t;.  Par- 
ker, 3  Atk.  .576;  Attorney-General  v.  Foster, 
10  Ves.  335;  Attorney  General  v.  .Newcombe, 
14  Ves.  1.  And  see  Dundee  Harbor  Trustee* 
V.  Dougull,  1  Su.  App.  Cas.  20. 


N 


11 


464 


WHEN    IN    CONFLICT    WITH    CONTKACTS,  ETC. 


StHtutes  (!;onstru«d  by  Usage. 


abrogateu  by  the  acceptance  of  a  charter  inconsistent  with  it.'  "A  usas;o  not 
inconsistent  with  a  cliarter,  nor  ropu^uant  to  it,  may  continue  notwithstandin<( 
the  acceptance  of  a  charter,  but  a  usage  repugnant  to  the  charter  cannot." 
This  was  laid  down  distinctly  by  Tentkkdkn,  C.  J.,  in  an  early  case,  where  tlie 
cliartei"  of  a  city  provided  that  vacancies  in  tlie  council  should  be  filled  by  the 
election  of  "  burgesses  and  inhabitants  "  of  the  city.  The  defendant,  wLj  was 
not  an  inhabitant  of  the  city,  was  elected  to  till  a  vacancy  in  the  council,  and 
sought  to  defend  his  title  by  a  usage  in  the  city  to  elect  burgesses  not  inliabi- 
tants  thereof.  IJut  it  was  unanimously  ruled  in  the  King's  Bench  that  the  usage 
was  repugnant  to  the  charter,  and  could  not  be  pleaded.^ 

Likewise,  in  this  country,  custom  has  been  looked  to  for  the  purpose  of  inter- 
preting ttie  meaning  of  particular  phrases  in  charters  giving  authority  to  munici- 
pal corporations.  Thus,  in  V/illard  v.  Neiobui-i/port,^  it  was  said  that  the  term 
"prudential  concerns  "  embraced  those  subjects  affc  ;ting  the  accomramlalion 
and  convenience  of  the  inhabitants  not  otherwise  speciticaliy  provided  for,  wiiicli 
had  been  placed  under  the  jurisdiction  of  towns  either  by  statute  or  by  usage. 
So,  in  a  later  case  in  the  same  State,  where  the  same  words  were  in  dispute,  the 
court  said:  "  In  looking  to  usage  ar  1  custom  as  the  means  of  ascertaining  what 
subject  of  common  interest  is  embrat^ail  under  the  term  '  prudential,'  the  court 
are  of  opinion  tliat  the  erecting  of  a  market-place  in  the  large  towns  and  popu- 
lous villages  is  embraced.  *  ♦  *  It  may  b(>  suggested  that  referriug  to  usage 
as  a  source  of  this  power  is  still  leaving  llie  subject  open  to  doubt.  It  does  so; 
but  as  there  are  some  subjects  which  iiave  long  been  rt  gadded  as  within  the 
authority  of  towns,  not  made  so  by  siatuLe,  and  as  such  powers  have  never  been 
questioned,  there  is  no  authority  whence  they  can  ho  derived  but  usage.  Indued, 
a  recurrence  to  the  history  of  the  formation  of  towns  will  show  that  most  of 
the  powers  originat  id  in  usage,  founded  on  the  convenience  and  necessities  of 
tU«  inhabitants,  and  wer«  afterwards  recognized  and  coutirmod  by  statute."* 
But,  as  said  by  a  learned  writer,  usage  in  this  country  ha:=  a  much  more  limited 
operation;  and  it  i-eems  to  be  a  necessary  result  of  the  creation  of  municipal 
corporations  by  legislative  acts,  wlierein  tlieir  powers  and  duties  are  expressly 
prescribed;  that  these  pi.  vs  and  duties  cannot  be  added  to,  enlarged,  or 
diminished  by  usage  or  custom.*  Where  the  charter  of  a  city  provided  Wiat  no 
contract  should  be  binding  on  it  unless  made  by  some  authorized  agent  and  an 
api)ropriation  therefor  voted,  it  was  held  that  it  was  not  liable  for  legal  services, 
beneficial  to  the  city,  performed  by  counsel  retained  by  a  majority  of  the  board 
of  aldermen  without  any  official  action  of  either  branch  of  the  council,  although 
the  usage  of  the  city  had  been  to  pay  such  bills  as  were  approved  by  a  com- 
mittee of  either  board  without  any  formal  voto.«  And  an  unlawful  expenditure 
of  the  money  of  a  town  cannot  be  rend(;red  valid  by  usage,  however  long  con- 
tinued.   Tlius,  in  Hood  v.  Lynn,'  a  custom  in  the  town  of  Lynn  to  celebrate  the 


I'owell  V.  llej?ina,  2  Bro.  P.  C.  298;  Had 
dock's  Caee,  T.  Iluym.  435. 

-  Kcx  V.  Salivay,  9narn.  &OresH.  424;  Bex 
«.  Choster,  1  Mau.  &  Sel.  101. 

»  12  I'ick.  237. 

*  SpauldiDK  «■  Lowell,  23  Pick.  71;  Smith 
«.  ChcHhire,  13  Gi-ay,  308. 

»  Dill.  ouMun.  Corp.  230. 


«  "  Tlie  usage  hero  attempted  »<>  be  estab 
liihed,"  siiid  tlie  court,  "  Is  in  violiUimi  of 
the  general  law  and  the  charter  and  oidi- 
narcea  oi  tbe  pity.  'I'lic  doing  of  one  wrong 
does  not  excuse  anotlier."  Butler  v.  (Jity  ^i 
Charlcslown.  7  'iray,  12. 

'  1  Allen,  lOU. 


CUSTOMS    IN    CONFLICT   WITH   THE    COMMON    LAW. 


465 


Contradictory  Opinions. 


Fourth  of  July  was  Ineffectual  to  sustain  a  vote  of  money  for  such  a  purpose, 
not  authorized  by  the  charter;  and  in  Cenoit  v.  Conway,^  authority  in  a  town 
tri-asurer  to  borrow  money  on  the  credit  of  the  town  was  held  not  sustainable 
by  proof  of  a  usage  to  that  effect  —  in  the  first  case  it  being  laid  down  that  the 
custom  of  a  municipality,  in  order  to  be  valid,  must  be  a  custom  necessary  to 
the  exercise  of  some  corporate  power  or  the  enjoyment  of  some  corporate 
right,  or  one  which  contributes  essentially  to  the  necessities  and  conveniences  of 
the  inhabitants. 

§  225.  Customs  and  Usages  not  inadmissible  because  in  conflict  with 
Common-Law  Rules.  —  It  was  no  objection  to  a  comraou-law  custom  that  it 
was  contrary  to  the  common  law  of  the  lana;  *  otherwise  the  customs  of  gavel- 
kind or  borough-English,  which  are  directly  opposed  to  the  law  of  descent;  tlic 
custom  of  Kent,  which  is  inconsistent  with  the  lav  ,i  escheats,  and  many  other 
customs  in  conflict  with  common-law  rules  or  m;  xims,  could  not  have  been 
recognized.  In  general,  too,  evidence  of  u  usage  of  trade  is  not  iua(imissible 
because  it  is  contrary  to  the  principles  of  law  governing  such  cases;  for  it  is 
obvious  that  if  proof  of  a  nsage  could  be  rejected  because  it  established  some- 
thing different  from  the  law,  no  custom  would  ever  be  proved,  because  if  itjwere 
not  different  it  would  be  a  part  of  the  law. 

§226.  Contradictory  Expressions  of  some  Courts  on  this  Subject. — This 
being  so  plain,  it  is  somewhat  startling  to  find  a  large  number  of  cases  in  the 
reports  in  which  the  principle  is  broadly  laid  down  that  a  usage  or  custom  in 
opposition  to  an  established  rule  of  law  is  void  and  of  no  effect.  Thus,  in  1760, 
Lord  Mansfirld,  speaking  of  evidence  of  custom  in  an  action  on  a  bill  of 
exchange,  said:  "The  point  of  law  is  here  settled,  and  when  once  solemnly 
settled,  no  particular  usage  shall  be  admitted  to  weigh  against  it.  This  would 
send  everything  to  sea  again."  '  In  ICager  v.  Atlas  Innurancf  Cowpany,*  W  ir.DE, 
J.,  said:  "  Now,  it  seems  to  me  very  clear  that  no  particular  usage  opposed  to 
the  established  principles  of  law  can  be  sustained."  In  Warren  v.  Franklin 
Insvrance  Company,*  Chapman,  C.  J.,  said:  "This  being  the  rule  of  law  as  to 
damages,  the  custom  of  a  particular  port  could  not  vary  it."  In  Bargett  v. 
Orient  Insurance  Company,^  Boswouxii,  J.,  said:  "No  usage  can  exist  or  be 
proved  by  which  the  liabilities  of  parties  to  a  written  contract  will  be  greater  or 
less  than  the  settled  law  of  the  State  has  adjudged  thorn  to  be."  In  Homer  v, 
Z)ojT,'  the  Supreme  Judicial  Court  of  Massachusetts  said:  "  Evidence  of  custom 
and  usage  is  useful  in  many  cases  to  explain  the  intent  of  parties  to  a  contract. 
But  the  usage  of  no  class  of  citizens  can  l)e  sustained  in  opposition  to  principles 
of  law."  In  Rapp  v.  Pa?mer,*  Rogers,  J.,  said:  "Although  a  usage  is  often 
resorted  tc  for  explanation  of  commercial  instruments,  it  never  is  or  ought  to 
be  received  to  contradict  a  settled  rule  of  commercial  law."  In  The  Pacific,^ 
Deady,  J.,  said:  "The  law,  iind  not  such  a  custom,  ascertains  and  limits  the 
rights  and  liabilities  of  shippers  and  common  carriers."     In  Schieffelin  v.  Har- 


<  10  Alkn,  S23. 

:  Hortonv.  Beckman,  6  Term  Rep.  760. 
3  Edie  t'.  Kost  India  Co.,  1  W.  Black.  295; 
2  Burr.  1216. 
1  14  Pick.  141. 


»  104  Mass.  Q18. 
s  3  Bosw.  386. 
'  10  Mass.  26. 
0  3  Watts,  178. 
'  1  Deady,  17. 


no 


m 


466 


WHEN    IN    CONFLICT   WITH    CONTRACTS,  ETC. 


(Niiiiradiclorv  Kxnrcssions  of  Indivkliiul  Jiulv,os. 


vey,  TiioMi'soN,  ,1.,  snid:  "The  established  principles  of  hiw  cannot  he  con- 
trolled by  fustoni."  I>i  Minnesota  Central  Itailioa;;  Compnnn  v.  Monji^h, 
MiLLiCK,  J.,  siiid:  "No  custom  can  be  esta  .ished  which  contravenes  a  woll- 
settlcd  principio  of  law."  In  liaisin  v.  C/ar^•,'^  Millkk,  J.,  said:  "A  usau'((  in 
contravention  of  a  well-settled  and  salutary  rule  of  law  cannot  be  sustained  iiv 
courts  of  justice."  In  Thompaon  v.  Jiii/gs,'^  Mr.  Justice  Clikkokd  said :  "  Us;ii;o 
contrary  to  law,  or  inconsistent  with  the  contract,  is  never  admitted  to  coiitr  >  i 
the  general  rules  of  law  or  the  real  intent  and  ineaiiin!?  of  the  partios."  In 
Hone  V.  Mutual  Safety  Insurance  Company,*  Sandkoki),  J.,  said :  "  We  lind  it 
clearly  settled  that  a  tJfeueral  usas;e,  the  effect  of  which  is  to  control  rules  of 
law,  is  inadmissible;  so  of  one  which  contradicts  a  ii;eneral  rule  of  coiinnen  ial 
law."  In  Frith  v.  Barker,'  Kicnt,  C.  J.,  said:  "Thoui^h  usa<?e  is  often  rosorlctl 
to  for  explanation  of  commercial  instruments,  it  never  is,  nor  ou;iht  to  l)e, 
received  to  contradict  a  settled  rule  of  commercial  law."  In  Head  v.  liiclfrd- 
son,'^  the  court  .said:  "The  usance  in  question  is  objectioiialjie  and  invalid,  for  it 
tends  to  contravene  the  lixcd  rule  of  law."  In  Barnard  v.  Kellogg,''  Mr.  Justice 
Davis  said:  "It  is  well  settled  that  usage  caiuiot  be  allowed  to  subvert  the 
well-settled  rules  of  law."  In  (South- Western  Freight  and  Cotton  Press  Company 
v.  tStanard,'*  Waonkk.  J.,  said:  "Evidence  of  custom,  however,  is  never 
admissil)le  to  oppose  or  alter  a  general  principle  or  rule  so  as  to  mikt?  the  liLrlits 
and  liabilities  of  parties  other  than  they  are  at  law."  In  Mcah'r  v.  Lnfkin* 
Whkei.kk,  J.,  said:  "There  is  nothing  in  the  objection  that  proof  of  a  ciistuni 
was  admit; 'Ml  to  vary  the  law  of  the  land.  That,  it  is  admitted,  cannot  bo  done  " 
In  Stillman  v.  Jlurd,'"  Hk.mphii.i,,  C.  J.,  said:  "The  custom,  if  auy  such  exists, 
is  in  contravention  of  estai»lished  law."  In  Lockhart  v.  Deioces,"  Lu'S(;()mii,  J., 
said:  "  It  has  never,  it  is  believed,  been  held  that  an  acknowledged  rule  of  l:i\v 
could  be  subverted  by  local  custom."  In  Brown  \ .  Jackson,^'^  Mr.  Jusli(;e  Wasu- 
iNOTON  said:  "The  law  upon  this  subject  is  settled.  It  would,  therefore,  be 
improper  to  let  a  contrary  usage  be  proved,  which  is  only  proper  in  doul)tful 
cases."  "The  practice  of  the  New  York  stock  market,  as  testilled  to  by  one  of 
tlie  witnesses,"  said  Kwixo,  C.  J.,  in  a  New  Jersey  case,  "can  have  no  weight 
on  this  question.  We  are  to  seek  what  was  required  by  the  grave  and  steady 
rule  of  law,  not  what  wotdd  satisfy  the  eagerness  of  speculation,  grasping  its 
object  on  one  hand  with  bold  temerity,  and  parting  from  it  on  the  other  with 
suspicious  haste.  A  mournful  history  tells  us  there  were  at  that  time  in  the  stock 
market  many  practices  which  neither  the  law  nor  good  morals  could  uphold."'' 
lu  Inglchright  v.  Hammond,^*  Cki.i>vik\a.,  J.,  said:  "Evidence  of  custom  may 
properly  be  given  to  explain  and  give  the  proper  effect  to  the  contracts  aud  acts 
of  parties,  but  it  would  be  carrying  the  doctrine  too  far  to  permit  a  custom  to 
change  the  title  to  property  contrary  to  an  established  rule  of  law."  In  Smi'tz 
V.  Kennedy,^'-'  Evans,  J.,  said:  "No  custom  or  usage  can  be  allowed  which 
repeals  the  law  of  the  laud." 


1  52  Unrb.  217. 

2  41  M<J.  l.W. 
i'  6  Wall.  C«:J. 

<  1  .Sandl.  137. 
•'  2  Job  lis.  :127. 
''  98  Mass.  216. 
■•  10  Wall.  38S. 


8  44  Mo.  71. 

•  21  To.xas,  38L,. 
»•  10  Texas,  109. 
»  1  Texas,  5;{3. 
15  2  Wash.  C.  Ct. 


24. 


'»  McUourry  v.  .Suydain,  10  N.  J.  L.  245. 
>♦  10  Ohio,  ;m.  "■  Uiley,218, 


CUSTOMS    IN    CONFLICT    WITH    LK(iAI.    KULKK. 


467 


Mriiiks  nnd  B.iiikln';. 


Thosi-  oxpri'ssioiisarc  iiot  iiiii!)iu;iious;  no  otlicr  inclining  can  be  j^ivon  to  tluiii 
exce|)t  tills:  that  a  custom  or  usa^c  wliich  chaiiiit's  what  would  othorwiso  bi;  the 
situatior  of  the  parties,  or  alters  to  any  extent  their  rights  aceordinji  to  tlie 
rules  of  law  applicable  to  sueh  cases,  is  invalid  and  im.'ffeetual.  The  meaning 
of  the  terms  "rides  of  law,"  '*  principles  of  law,"  "settled  law,"  "establislu-d 
rules  of  law,"  as  they  are  used  by  the  judijos  whom  we  liav(!  just  cited,  is  not 
dillicnlt  to  arrive  at.  They  do  not  refer  to  the  laws  established  by  the  leuisla- 
ture,  and  which  we  llnd  In  the  statute-lxiok;  they  refer  to  the  rules  adopted 
and  the  doctrines  established  by  the  courts  for  the  conduct  of  the  citizen  and 
the  preservation  and  enforcement  of  his  rinlil^  -the  precedents  which  we  find 
in  the  reports;  in  short,  tiie  couiinon  law  of  the  land. 

§  227.  Same  —  Conflictinj?  Decisions.  —  But,  as  we  have  seen  in  former  chap- 
ters of  this  work,  particularly  in  the  chapter  on  Usai^e  and  Custom  in  Diffi-rcni 
Relations  and  Occupations,'  evidence;  of  custom  or  usajrc  is  most  potent  in  niodjfv- 
inj?  or  entirely  alterini?  the  position  of  p:irties  from  wliat  it  would  otherwi'^e  he, 
judged  by  the  ordinary  rules  of  law  applicable  to  such  cases  or  transactions. 
Nevertheless,  this  species  of  evidence  is  not  always  so  successful,  as  the  re|)()rte(l 
adjudications,  in  which  custom  and  usaj^e  have  been  set  up  to  affect  c(;rtaiii 
"established  rules  of  bw"  applicable  to  particular  relations  will  show. 

§228.  Banks  and  Banking  —  Usages  against  Legal  Rules  admitted.  —  In 
the  law  of  banks  and  bankiui;,  and  ncyotial)!!-  and  assijinable  paper,  the  followiriii 
legal  rules  have  been  controlled  or  altcinnl  by  proof  of  a  different  usage  in  indi- 
vidual cases:  1.  The  general  rules  of  law  as  to  the  time  and  place  and  mode  of 
making  demand  and  giving  notice  of  bills  and  notes.-  2.  The  rules  of  law  as  to 
the  powers  of  bank  odicers  and  agents. '  ;5.  The  rule  that  a  bank  receiving  a  check 
for  collection  has  until  the  close  of  banking-hours  on  the  lu^xt  busine.s.s-day  in 
which  to  present  it.*  4.  The  ruN-  that  a  bank  to  wtiom  a  note  is  sent  for  collec- 
tion need  not  notify  all  the  indorsers."'  .5.  The  rule  that  a  l)ank,  acting  as  the 
collecting-agent  of  another,  has  no  right  to  receive  in  payment  anything  but 
money.*  6.  The  rule  that  a  banker,  bv'w^  bound  to  know  the  signature  of  his 
customer,  pays  a  f  ''ged  check  on  him  at  liis  peril.' 

§229.  Same  —  Usages  against  Legal  Rules  rejected.  —  On  the  otlicr  hand, 
in  individual  cases  usages  and  customs  in(;onsist<'iit  with  the  following  rules  of 
law  have  been  rejected  by  the  courts:  1.  The  rule  of  law  that  negotiable  pa()er 
not  payable  instantly  is  entitled  to  days  of  grace;  otherwise,  not."  2.  The  rule 
of  law  that  where  a  bank  receives  a  sum  on  a  general  deposit,  it  is  bound 
to  respond  to  the  depositor,  when  called  on  for  a  like  sum,  in  good  money." 
3.  The  rule  of  law  that  where  the  holder  of  a  bank-bill  has  voluntarily  cut  it  in 
two,  for  the  purpose  of  transmitting  it  by  mail,  whereby  one  part  is  lost,  he  ma\ 
recover  the  full  amount  from  the  bank  upon  [iresenting  the  one  half  and  proving 
the  loss  of  the  other.'o   4.  xhe  rule  of  law  that  the  purchaser  of  negotiable  paper 


1  Ante,  Chnp.  III. 
»  Ante,  Chap.  IIL,  §§  OS,  69. 
»  Ante,  Chap.  HI.,  §§  M-87. 
<  ^«(e,  Chap.  111.,  §72. 
*  Ante,  OttAp.  111.,  i^% 


•^n<e,  Chap.  III.,  §72. 
»  Ante.  V.hpw  HI.,  §74. 
»  Autc.  C».'.p.  HI.,  §71. 
•^ni(e,  Cl\np.  lll.,§78. 
10  Ante,  ChAp.m,,i  16, 


ii',ili 


U   ; 


iMmi''  \  \ 


i . 


r  t      J  3' 


468 


WHEN    IN    CONFLICT   WITH    CONTRACTS,  ETC. 


Usiifies  in  Conflict  with  Legal  liules. 


past  due  takes  it  subject  to  the  equities  of  other  persons;  he  can  acquire  iii> 
better  title  than  his  transferor.'  5.  The  rule  that  money  paid  under  a  mistake 
of  fact  can  be  recovered  back,^  cannot  be  affected  by  a  custom  amoni^  banks 
generally,  and  insurance  offices  particularly,  that  no  mistakes  shall  be  recti HchI 
in  the  receipt  or  payment  of  money  unless  the  mistake  is  discovered  before  the 
person  paying  or  receiving  leaves  the  office.* 

§  230.  Common  Carriers  —  Usages  in  conflict  with  Rules  of  Law  admit- 
ted.—  In  the  law  of  common  carriers  the  followini?  rules  have  been  controlled 
by  inconsistent  usages:  1.  The  rule  that  a  common  carrier  is  one  who  under- 
takes, for  hire,  to  transport  the  goods  of  such  as  choose  to  employ  him,  from 
place  to  place.*  2.  The  rule  of  law  that  the  responsibility  of  the  common  carrier 
commences  with  the  delivery  of  the  goods  to  him  or  to  his  authorized  servants. ' 
3.  The  rule  that  the  carrier  remains  liable  for  the  goods  as  an  insurer  (willi 
exceptions)  \inti]  he  has  made  a  legal  delivery  of  them.®  4.  The  rule  that  in  tlic 
carriage  of  goods  by  water,  the  carrier,  unless  otherwise  directed,  must  stow 
them  under  deck.'  5.  The  rule  that  a  carrier  of  goods  by  water  is  liable  for 
damage  done  to  them  in  the  hold  through  contact  with  other  goods.*  6.  The 
rule  that  the  carrier's  liability  continues  until  he  has  made  personal  delivery  of 
the  goods  in  his  charge  to  whomsoever  is  properly  entitled  to  receive  them. 
7.  The  rule  that  the  carrier  must  give  notice  of  the  arrival  of  the  goods.'"  8.  The 
rule  that  the  goods  must  be  delivered  on  a  legal  day."  9.  Tlie  rule  that  an 
express  carrier  must  make  personal  delivery  of  the  goods  in  his  charge.'^  10.  The 
rule  that  on  the  refusal  of  the  goods  by  the  party  to  whom  they  are  sent,  the 
expressman  must  give  notice  of  such  refusal  to  the  consignee."  11.  The  rule 
that,  except  in  cases  of  emergency  and  necessity,  a  carrier  has  no  authority  to 
sell  the  goods  in  his  cliarge."  12.  The  rule  ihat  a  carrier  has  no  general  lien 
for  charges  on  the  goods  in  his  hands. '^  13.  The  rule  that  credit  given  the  cus- 
tomer by  the  carrier  beyond  the  time  when  the  goods  are  to  be  delivered,  is 
inconsistent  with  and  will  defeat  the  lien.'"  14.  The  rule  that  the  concmou-law 
liability  of  a  carrier  can  be  restricted  only  by  means  of  a  contract." 


»  ^nfe,  Chap.  III.,  §77. 

-  Filgor  r.  Penny,  2  Murph.  182 ;  Lucas  v. 
Wor.swick,  1  Moo.  &  U.  293;  Osgood  v.  Jones, 
23  Me.  ;U3;  Baltimore,  etc.,  R.  Co.  v.  Faunce, 
6  Gill, 68;  IJank  of  Commerce  v.  Union  Hank, 
3  N.  Y.  2,i0;  Henderson  v.  rianter.s'  IJank,  11 
Rich.  L.  44;  Garland  v.  Salem  liank,  9  Mass. 
408;  Logan  v.  Sumter,  28  Ga.  242;  Dickens  v. 
Jones,  6  Yerg.  483;  West  v.  Houston,  4  Harr. 
170;  Lawrence  v.  American  Nationnl  liank, 
54  N.  Y.  432;  Millett  v.  Holt,  60  Me.  109;  Ver- 
non V.  West  School  District,  158  Conn.  112; 
Duncan  v.  Berlin,  16  N.  Y.  68.');  Kingston 
Bank  v.  Kllinge,  40  N.  Y.  :!91 ;  Young  r. 
Stabelln,  :i4  N.  Y.  2S8;  Northrop  v.  Graves, 
19  Conn.  548;  Manchester  v.  Burns,  46  N.  U. 
482;  Ilolbrook  r.  Allen,  4  Fla.  87;  Guild  v. 
Baldridge,  2  Swan,  295;  Walker  v.  Mock,  39 


Ala.  568;  Illinois,  etc.,  Ins.  Co.  r.  Fox,  53  111. 
151. 

I  Gallatin  r.  Bradford,  1  Bibb,  209;  Me- 
chanics', etc..  Bank  v.  Smith,  19  Johns.  115. 

<  Ante,  Cliai).  HI.,  §  78. 

6  Ante,  Chup.  HI.,  §  79. 
«  Ante,  Chap.  III.,  §  83. 

7  Ante,  Chap.  III.,  §  84. 

8  Ante,  Chap.  III.,  §  84. 

»  Ante,  Chap.  III.,  §§  85,  86. 
»o  Ante,  Cliap.  111.,  §§  87-89. 
"  Ante,  Chap.  HI.,  §  90. 

12  Ante,  Chap.  III.,  §§  94-96. 

13  Ante,  Chap.  IIL,  §  96. 
i«  Ante,  Chap.  III.,  §  99. 

16  Ante,  Chap.  HI.,  §  100. 
10  Ante,  Chap.  III.,  §  100. 

17  Ante,  Chap.  HI.,  $  101. 


ITT 


f.        ' 


CUSTOMS    IN    CONFLICT    WITH    UlLKS    OF    LAW. 


469 


Corporations —  Iiisiinmce. 


§231.  Same  —  Usaeres  in  conflict  with  Rules  ol  Law  rejected.  —  But 
the  following  rules  have  been  maintained  in  tlie  face  of  contradictory 
usages:  1.  Tiie  rule  that  wliere  freiglit  is  paid  in  advance,  and  in  con- 
sequence of  the  capture  or  shipwrecli  of  the  vessel,  or  other  causi  not 
imputable  to  the  consignor,  the  goods  are  not  carried  to  the'ir  destiniition,  the 
freight  is  not  earned,  and  may  be  recovered  baclc,  unless  there  is  an  aj^rcenient  to 
the  contrary.'  2.  The  rule  tliat  a  bill  of  lading  is  like  any  other  recei|)t,  and, 
80  far  as  it  is  considered  as  such,  may  be  explained  or  contradictod  by  parol. ^ 

§232.  CorporationB  —  Usages  against  Common-Law  Rules  admitted. — 
In  the  law  of  corporations  tliese  rules  have  been  moditied  or  altered  by  usage 
and  custom:  1.  The  rule  that  a  corporation  can  express  its  assent  only  by 
means  of  its  seal.^  2.  The  rule  that  where  the  charter  of  a  corporation  pre- 
scribes the  particular  mode  in  which  its  contracts  sliall  be  maih  ,  that  mode 
must  be  pursued.^  ;?.  Tlie  rule  that  no  lien  exists  in  favor  of  a  corporation  upon 
the  shares  of  a  stockholder  who  is  indebted  to  it.* 


Co.  r.  Fox,  53  111. 


§  233.  Insurance  —  Usages  in  conflict  with  Legal  Rules  admitted.  —  In  the 
law  of  insurance  the  following  "  established  rules  of  law"  have  been  controlled 
by  evidence  of  different  customs:  1.  The  rule  tliat  a  risk  on  a  ship,  or  on 
goods  therein,  commences  only  at  the  very  port  or  place  named  in  the  policy  as 
that  from  which  tlie  ship  is  to  sail,  or  where  the  goods  are  to  be  loaded,  and 
ends  only  when  the  ship  '<as  reached  the  port  to  which  it  is  insured."  2.  The 
rule  that  the  meaning  of  the  parties  to  the  policy  is  invariably  understood  to  be 
that  the  ship  sliould  proceed  from  one  terminus  of  the  voyage  insured  to  the 
other  in  a  direct  course,  without  touching  at  any  intermediate  point  or  pursuing 
any  intermediate  adventure;  therefore,  if  she  do  so  without  leave  for  that 
|)urpose  being  expressly  given  in  the  policy,  this,  however  trifling  in  extent  or 
duration,  is  a  deviation,  although  the  ship  may  afterwards  return  to  her  proper 
course,  and  this  will  discharge  the  underwriter.'  3.  The  rule  tliat  the  ship 
must  visit  such  ports  in  the  geographical  order  of  their  distance  from  the  ter- 
minus or  port  of  departure.**  4.  Tlie  rule  that  a  deviation  simply  for  the 
purpose  of  saving  property  will  discharge  the  insurer.'  5.  The  rule  that  if 
goods  are  necessarily  thrown  overboard,  for  the  purpose  of  lightening  the  ship, 
the  loss  is  to  be  made  good  i)y  the  contribution  of  all,  because  insured  for  tie 
benefit  of  all,  except  as  to  the  owner  of  goods  loaded  above  (leek.'"  fi.  The 
rule  that  in  a  policy  of  marine  insurance  effected  upon  certain  goods  on  an  out- 
ward voyage  and  their  "proceeds"  home,  the  word  "proceeds"  moans  the 
same  as  "  produce,"  viz. :  something  proceeding  from,  or  produced  by,  some- 
thing else,  —  the  same  amount  or  value  of  goods  sold  and  converted  into  money, 
or  goods  purchased  witli  such  money,  or  exchanged  for  the  original  goo«ls,  —  and 
cannot  include  tlie  identical  goods  brought  home  on  the  return  voyage." 
7.  The  rule  that  there  can  be  no  apportionment  of  tlic  premium  wiicre  the  risk 


'  ^n<e,  Chap.  1II.,§<,)8. 
~  i^trong  V.  Grand  Trunk  R.  Co.,  15  Mich. 
ii06. 

'■>  Ante,Vhn]).  lll.,§10;i. 
*  Aitte.,C\m\).  TIL,  §  105. 
''  Ante.Chin).  III.,  §  IIHJ. 


«  Ante,  Cliap.  1II.,§  111. 

'  Ante,  <'hii|i.  111.,  §  112. 

»  ^n/f:,  Chap.  III.,  §112. 

»  Ante.  (-Imp.  III.,  §  112. 
w  Ante.  Chii\K  III.,§  113. 
>i  .^n<c  (;hup.  III.,  §  114. 


470 


\vm;\   IN  CONFLICT  wnii   contracts,  ktc. 


Usauos  in  Conflict  witli  Lcf^al  llnles. 


I  .1  " 


is  entire.'  8.  The  rnle  in  the  law  of  flro  insnrancc  that  any  alteration  or  chanjje 
in  tlie  rislv,  miulc  'ailtsiiquent  to  tlie  insnriinco,  and  wliicli  lias  tlic  eff(!ct  of  mate- 
rially incrcasii)!;  Mm  risk,  will  avoid  the  policy.-  '.».  Tliu  rule  that  the  kci'ijing 
or  use  of  articles  proliibited  by  the  terms  of  the  policy  will  avoid  it/'  10.  The 
rule  that  wliere  a  lifci-policy  provides  that  it  shall  i)e  forfcitiHl  if  the  prcMiiiiim  is 
not  paid  on  the  particular  day,  the  insurer  is  discharged  if  it  is  not  paid  on  that 
day.« 

§  2;?4.  Same  —  Usages  in  conflict  with  Le^al  Rules  rejected. — On  the  con- 
trary, usages  to  affect  tiie.se  rules  have  been  rejected   by  the  courts:    1.  The 
rule  that,  unless  specially  provided  for  in  the  policy,  tlie  insured  is  not  bound  to 
inform  the  insurer  of  any  chaniijii  in  adjoinin;:;  promises,  however  mucli  the  risk 
maybe  increased  thereby.'"    2.  The  rule  that  reirurance  is  a  contract  of  indem- 
nity to  the  reassured,  and  binds  the  reassurer  to  lay  to  the  reassured  the  whole 
loss  sustained  in  respect  of  the  subject  insured,  to  the  extent  to  whicli  he  is 
reinsurer."    3.  Where   a   fire-insurance   company  a;;reed  in  its  policy  tliat  its 
directors  sliould  "settle  and  pay  to  the  assured  all  losses  within  three  months 
after  notice  sliall    have  been  jriven  as   aforesaid,  and  that  the  ia>iuentof  the 
loss  ascertained  should    be    made  within  the  time  prescribed  by  the  charter, 
without  deduction  from  the  sum  decreed  by  the  adjustment,"  proof  of  a  usage 
on  the  part  of  the  company,  in  case  of  a  total  loss,  to  retain  of  the  amount  of 
the  ascertained  loss  two  per  cent  per  month  on  the  balance  of  the  premium-note, 
from  the.  date  of  tlie  last  assessment  upon  it  until  the  expirati)ii  of  the  term  of 
the  policy,  was  rejected.     "The  object  and  effect  of  the  proof  offered  of  the 
usa^e  in  this  case,"  said  Woods,  J.,  "were  plainly  lo  vary  and  limit  the  plain 
and  unequivocal  terms  of  the  policy,  and  to  control  and  limit  their  construction 
and  le<!;al  effect.     To  j^ive  the  eviuencc  of  the  usage  the  effect  claimed  for  it, 
would  be  to  allow  the  exact  converse  of  the  true;  and  well-settled  rule  of  law 
npon  this  subject  to  prevail.     It  would  be  to  hold  that  while  the  contract,  in 
express  and  unmistakable  terms,  provides  that  the  whole  loss  shall  be  ascer- 
taiiiod  and  paid  to  the  assured,  the  usage  sliall  control  the  express  terms  and  give 
them  the  effect  of  a  contract  for  the  payment  of  a  sum   less  than  the  whole 
loss  sustained.     It  would  bo  to  allow  the  usage  to  control  an  express  written 
contract  and  to  limit  its  terms  and  effect,  while  it  is  well  settled —  in  accordance 
with  sound  reason,  too  —  that  a  usage  shall  be  regarded  as  waived  by  the  express 
terms  of  a  contract  when  they  are  in  conttict  with  each  other."  ^ 

§235.  Landlord  and  Tenant  —  Customs  against  Law  admitted.  —  fn  the 
law  of  landlord  and  tenant  these  cominon-law  rules  have  been  altered  by  tlin 
custom  of  tlie  country:  1.  The  rule  that  "if  a  tenant  for  years,  knowing  tlie 
end  of  his  term,  dotli  sow  the  land,  and  his  term  endeth  before  his  crop  is  ripe, 
the  livssor,  or  he  in  reversion,  siiall  have  tlm  (;rop,  Ix'cause  the  lessee  knew  the 
certainty  of  liis  term,  and  when  it  would  end."^    2.  The  rule  that  where  tliere 


la 


'  ^n(e,  Chai>.  iri.,§  115. 
3  ^«((!,  Chill).  HI.,  §  111>, 
0  ^rifi^,  Oha|).  III.,  §  118. 
*  Ante,  Chap,  III.,  §  lit. 
''   4nte,Oliii^.UL,iViO. 


«  Ante,  chap.  III.,  §  !2,t. 

'  Swamscot  Muchino  Co.  v.  Pai liiiige,  28 

N.  n.  .•{(!!». 

•^n<e,  Chiip.  III.,  §127. 


CUSTOMS    IN    CONFLICT    WITH    LROAL    KULKa. 


Priuciptil  and  Airt'iit. 


471 


is  no  covenant  in  tlie  lease  by  whicli  the  lessor  undortakes  to  repair,  ho  is  not 
bound  to  do  so,  and  the  lessee  cannot  make  repairs  and  charge  the  cost  to  him.' 
3.  The  rule  that  on  the  sale  of  property  the  vendee  must  pay  for  the  convey- 
ance.''   4.  The  general  rules  as  to  fixtures  between  landlord  and  tenant.' 

§  236.  Contracts  for  Personal  Services  —  Customs  against  Law  admitted.  — 
In  the  case  of  coiilraets  for  personal  service,  the  old  rule  that,  the  contract  being 
entire,  nothing  can  be  recovered  if  it  be  but  partially  performed,  may  be  altered 
by  proof  of  usage  .^ 

§237.  Same  —  Customs  against  Law  rejected.  —  In  an  early  case  in  North 
Carolina  it  was  held  that,  the  law  being  that  the  hirer  of  a  slave,  and  not  the 
owner,  was  liable  for  medicine  and  medical  services  renchired  the  slave  during 
the  terra  of  the  hiring,*  this  rule  could  not  be  changed  by  a  particular  custom 
in  a  county  that  the  owner  should  pay  sucli  expenses ; "  and  this  principle  was 
extended  in  a  later  case  to  render  of  no  account  a  local  custom  that  if  a  female 
slave  was  delivered  of  child  during  her  term  of  hiring,  the  owner  should  allow 
the  hirer  the  sum  of  $10.^ 


§238.  Partnership  —  Usages  against  Legal  Rules  admitted. — 'In  the  law 
of  partnership  the  following  rules  have  been  modified  or  altered  by  proof  of 
usage:  I.  Tile  rule  that  general  reputation  cannot  establish  a  partnership/ 
2.  The  rule  that  persons  cannot  be  charged  as  partners  unless  they  are  actually 
or  impliedly  such.* 


m 


§239.  Principal  and  Agent  —  Usages  in  conflict  with  Rules  of  Law  ad- 
mitted. —  These  rules  of  law,  as  affecting  tlie  relation  of  principal  and  a.;(!iit,  have 
been  changed  by  proof  of  a  different  usage :  1.  The  rule  that  an  autliorily  to  do 
an  act  cannot  be  delegated  to  another."  2.  Tlie  rule  that  a  factor  has  no 
implied  authority  to  sell  except  for  cash."  3.  The  rule  that  a  factor  has  no 
authority  to  pledge  the  goods  of  his  principal  as  security  for  his  own  dcl)t.'* 
4.  The  rule  that  the  factor,  unless  authorized  by  his  principal,  cannot  set  off 
his  private  debt  to  the  vendee  against  the  vendee's  debt  on  the  sale ;  and  the 
principal  will  not  be  bound  by  such  a  transaction.''  5.  The  rule  that  an  agent 
is  not  personally  bound  by  a  contract  made  by  him  for  his  principal." 


Parlridgd,  '25 


§240.  Same  —  Usages  in  conflict  witli  Rules  of  Law  rejected.  —  Other 
rules  in  the  same  relation  have  not  been  permitted  to  be  affected  by  incon- 
sistent custom-*,  viz.:  1.  The  rule  that  profits  made  by  an  agent  out  of  tiic 
principal's  business  belong  to  the  principal,  and  not  to  the  agent.''  2.  The  rule 
that  an  agent  of  the  owner  to  sell  property  cannot  be  an  Jigent  for  the  pur- 
chaser as  well,  and  receive  pay  from  bolh.'"    3.  The  rule  that  an  agent  miisi 


'  Ante,  Ch!i|).  UI.,  §  123. 

>  A}ite,C\m>-  III..  §128. 

J  ^n«c,  Chai).  HI..  §131. 

<  Ante,  Chai).  III.,  §  137. 

'  Haywood  ».  Loiifj,  '>  Ircd.  L.  4118. 

*  JunCBV.  Allen,  5  In  il.  L.  273. 

^  Cooper  V.  I'lirvis,  I  Jonoa  L.  141. 

"  .^nte,  Chap.  HI.,  {140. 


9  Ante,  Chap. 

'0  Ante,  Clm)). 
"  Ante,  Chap. 
>«  Ante,  Chap. 
"  Ante,  ('liap. 
>■•  A)ile,  Chap. 
''■>  Ante,  Chap. 
I"  Ante,  Chap. 


III.,  §  141. 
III.,  §  143. 
III.,  §146. 
HI,  5  147. 
III.,  §150. 
HI.,  §154. 
III.,  §  152. 
111.,  i  153. 


472 


WHKN    IN   CONFLICT    WITH    CONTRACTS,  ETC. 


Usages  in  Conflict  witli  Legal  Rules. 


follow  the  instructions  of  his  principal.'    4.  The  rule  that  a  person  contracting 
as  agent  will  be  personally  liable  where  he  makes  the  contract  in  his  own  name.' 

^241.  Vendor  and  Purchaser  —  Usagres  against  Legal  Rules  admitted. — 
The  following  rules  of  law  governing  sales  of  personal  property  have  been  modi- 
fled  or  altered  by  proof  of  a  different  usage,  viz. :  1.  The  rule  that  the  mere 
exhibition,  at  the  time  of  the  sale,  of  a  sample  of  the  goods  docs  nut  of  itself 
constitute  such  a  sale  by  sample  as  to  subject  the  seller  to  liability  upon  an 
implied  warranty.''  2.  The  mle  that  a  purchaser  entitled  to  rescind  a  contract, 
for  fraud  or  other  reasons,  must  rescind  it  in  toto.*  3.  The  rule  that  where 
goods  are  sold  for  cash,  and  the  seller  delivers  them  to  the  purchaser  upon  tlie 
faith  of  his  paying  casli,  and  immediately  demands  it,  but  the  buyer  refuses  to 
pay,  the  delivery  is  not  absolute,  but  only  conditional,  and  the  seller  may 
reclaim,  the  title  never  having  passed  away  from  him.*  4.  The  rule  that  where 
they  are  sold  for  cash,  to  be  paid  for  on  delivery,  eitlier  in  casli  or  commercial 
paper,  and  they  are  delivered  without  exacting  the  money  or  tlie  securities,  the 
delivery  becomes  absolute,  and  the  title  thereby  vests  in  the  purchaser.*  5.  The 
rule  that  where  no  time  for  the  payment  of  goods  sold  and  delivered  ic  fixed  by 
the  contract,  the  price  becomes  due  and  payable  as  soon  as  the  delivery  is  com- 
pleted.' 6.  The  rule  that  interest,  in  the  absence  of  an  agreement,  is  not 
allowed  upon  unli(|uidated  accounts  for  goods,  wares,  and  merchandise,  for 
work  done,  or  on  book-accounts.* 

§242.  Same  —  Usages  against  Legal  Rules  rejected.  —  But  in  the  law  of 
sales,  very  many  usages  lave  been  rejected  when  in  conflict  with  the  following 
legal  rules,  viz.:  1.  The  rule  that  on  sales  of  personal  property,  where  the  buyer 
has  an  opportunity  to  inspect  the  commodity,  and  the  seller  is  guilty  of  no 
fraud,  .and  is  neither  the  manufacturer  nor  grower  of  the  articles  he  sells,  the 
maxim  caveat  emptor  applies,  and  the  buyer  takes  the  risk  of  the  quality  upon 
himself."  2.  The  rule  that  if  the  sample  be  fairly  drawn  from  the  bulk  of  tiie 
goods,  and  the  bulk  corresponds  with  the  sample,  but  there  is  a  defect  in  both 
sample  and  bulk,  and  this  defect  is  unknown  and  undiscernible,  there  is  no 
implied  warranty  against  this  defect,  and  the  seller  is  not  responsible.'"  3.  The 
rule  that  upon  the  sale  of  an  article  by  a  manufacturer,  there  is  an  implied 
warranty  that  it  will  answer  the  purpose  for  which  it  is  made."  4.  The  rule 
that  on  a  simple  pledge  of  stock  to  a  broker  as  collateral  security,  the  pledgee 
lias  no  right,  witliout  notice,  to  dispose  of  it  because  the  pledgeor  fails  to  comply 
with  his  engagement.'^ 

§  243.  Miscellaneous  — Usages  contradicting  Rules  of  Law  admitted.  —  So 
the  general  rules  of  law  governing  tlie  question  of  negligence,"  or  contributory 
negligence,'*  or  nuisance,  or  fraud, '^  or  trespass,'*  or  the  use  of  watercourses,"  or 


1  Ante, 
»  Ante, 
•*  Ante, 
<  Ante, 
'•'  Ante, 
'■  Ante, 
'  Ante, 
■  Ante, 
•  Ante, 


Chnp. 
Chap. 
Oliiip. 
Chap. 
Chap. 
Chap. 
Chap. 
Chap. 
Chap. 


III., 
III., 
III., 
111., 
III., 
III.. 
III., 
III., 
III.. 


§  153. 
§  1.-54. 
§  1(!0. 
§  IW. 
§  KiS. 
§  l(i5. 
§166. 
§167. 
S15S. 


'0  A7ite,  Chap.  III.,  §  160. 
1'  Ante,  Chap.'.III.,  §  161. 
"  Ante,  Chap.  III.,  §  162. 
»  Ante,  Chap.  III.,  {§  169-172. 
"  Ante,  Chap.  III.,  j  171. 
'»  Ante,  Chap.  III.,  §§  173, 174. 
'•  Ante.Chhp.  III.,  §  176. 
»  Ante,  Chap.  III.,  §  176. 


CUSTOMS  IN  CONFLICT  WITH  LEOAL  RULES. 


473 


Mi^ccllaiu'oiis  Ruk's  H-irciid. 


own  name. 


the  execution  of  the  duties  of  an  ofllcor,'  have  in  many  instuncc"*  been  controlled 
by  evidence  of  nsajie  and  cnstom.  It  has  been  held  in  reniiMlvania  that  the 
common-law  doctrine  that  fresh-water  rivers  in  whirrh  the  tide  docs  not  ebb  or 
flow  belong  to  the  owners  of  the  banks,  does  not  apply  to  the  Susciuehanna,  or 
the  other  large  rivers  of  the  State.  But  a  custom  that  the  owners  of  the  banks 
of  the  Susquehanna  should  have  the  exclusive  right  to  llsh  in  the  river  opposite 
their  shores  was  recognized.'^ 

§244.  Same  —  Usages  contradlctiner  Rules  of  Law  rejected.  —  lo  an  Ala- 
bama case,  it  was  held  to  be  the  law  that  when  a  party-wall  separating  the 
buildings  of  adjacent  proprietors,  and  erected  by  them  at  their  joint  expense,  is 
destroyed  by  flre,  there  is  no  implied  agreement  between  them,  nor  any  legal 
obligation,  to  rebuild  another  wall  on  the  same  foundatioii;  but  one  rebuilding 
on  the  same  foundation  could  not  compel  a  purchaser  from  the  other  proprietor 
to  contribute  to  the  cost  of  the  wall,  or  to  make  compensation  for  using  it  in  the 
subsequent  erection  of  a  building  on  the  same  lot;  and  that  a  linage  on  the  part 
of  lot-owners  was  not  admissible  to  alter  this  rule.^  In  a  Minnesota  case,  a 
custom  by  which  a  vendor  of  an  article  warranted  to  be  giMiuine,  but  wlii(;h 
turns  out  to  be  spurious,  may  satisfy  his  obligation  by  paying  in  kind  instead  of 
responding  in  damages  according  to  the  rules  of  the  common  law,  was  held  to  be 
invalid. ^  The  rule  that  a  second  mortgagee  with  notice  of  a  first  mortgage  is 
not  affected  by  anything  advanced  subsequent  to  his  mortgage  with  notice,^  it  is 
held  in  England,  cannot  be  altered  by  a  contrary  custom  between  brewers  and 
distillers  and  their  customers."'  Where  the  law  fixes  the  end  of  a  lease,  evidence 
of  a  different  custom  is  incompetent.'  What  is  a  good  tender,  it  was  held  in 
Texas,  could  not  be  shown  by  local  usage. ■" 

§  24.5.  The  Necessity  for  reviewiner  the  contradictory  Cases.  —  The  student 
will  doubtless  have  already  observed  that  the  rules  of  law  which  evidence  of 
u-iage  and  custom  has  been  ottered  or  introduced  to  affect  may  be  divided 
into  distinct  clas.ses.  In  the  llrst  are  those  rules  which,  without  a  dissenting 
decision,  have  been  modilied  or  controlled,  as  occasion  arose,  by  proof  of  a 
different  usage.  The  second  comprises  those  rules  upon  which  there  is  a  conflict 
of  authority;  one  case  holding  tiiat  they  may  be  niodifled  by  usage,  another  that 
they  can  not.  In  the  third  class  fall  those  rules  of  law  which  have  l)een  attacked 
by  this  species  of  proof,  but  which  have  not  yielded;  those,  in  short,  where, 
after  a  diligent  examination,  we  have  been  unable  to  find  a  single  judicial 
lUcision  where  evidence  of  usage  or  custom  to  control  their  legal  effect  has  not 
hii'u  rejected.  The  first  class  requires  no  comment;  the  second  maybe  left 
to  take  care  of  itself,  the  opinions  of  the  judges  in  the  aflirmative  being  in 
vvLvy  case  a  sufHcient  answer  to  the  reasons  given  in  the  other  cases  against 


■  ^nti',  Chill).  III.,  §  177. 

'  ('ui'KDii  c.  liluzer,  2  Bimi.  475. 

'  Antomarchi  r.  lUisscll,  (1;?  Ala.  356. 

■•  Joliii-oii  /■.  (iillillaii,  s  Miiiu.  :!!«. 

■'  iroi)kinsoii  ('.  Uolt,  it  II.  L.Cus.rtH;  Shaw 
r.Xeale,  (!  II.  U  Gas.  581. 

'•  Dauii  V.  City  of  London  Brewery  Co.,  L. 
R.  8  Eq.  155;  Monzies  v.  Lightfoot,  L.  U.  11 


Ki|.  4.')9.  "  The  evidenci-  of  cu.^itom,"  said 
Roiiiilly,  M.  K.,  in  Uil-  ia-i  laMi,  "  is  merely 
evidence  of  cu.«toni  to  ;;ivi'  lo  a  writton  doc- 
ument a  meaning  other  th.iii  Ihal  alli\(;d  to 
it  by  the  decision  of  the  House,  of  Lordu." 

■  Jackson  v.  Belin^, -'■!  '-ii.  An.  377. 

■  Lo<;kh.iil  r.  Uuwee.s,  1  Texas,  535. 


h 

i 

i 

1 

V) 

B  1  *  ■ 


V'i£f 


m 


111'      i  rJ  f 

I  iM 


474  WHBN    IN    CONFLICT    WITH    CONTUACT8,  KTC. 


The  Contradictory  Casos  Ilcviewod. 


their  admissibility,  lint  as  ivt^ards  the  lliirci  class,  we  liavc  tlnmirlit  it  well  io 
this*  section,  at  the  rislt  of  repeating  the  lunj^uafii?  of  courts  and  judj^cs  already 
set  out  in  former  portions  of  this  book,  to  brinjj  tosettior  those  cases  which  have 
decided  tliat  certain  rules  of  law  cannot  be  alt(>red  or  controlled  by  a  different 
custom,  wherever,  and  wlierever  only,  no  case  sustaininj?  the  admissibility  of 
usage  in  conflict  with  that  particular  rule  can  be  found  in  the  reports.  These 
cases  are  not  numerous;  but  the  fact  that  they  are,  on  principle,  in  direct  conflict 
both  with  the  weight  of  authority  and  with  the  views  of  the  writer,  would  seem 
to  justify  their  examination  in  this  place.  They  will,  therefore,  be  found  in  the 
next  section. 

§  241).  The  Facts  and  the  Opinions  of  the  Jud;?9s  in  the  above  Cases.  — 
In  Marine  Bank  of  Chicnffo  v.  Chandler,^  the  defendant  asked  th(;  followini^  in- 
struction, which  was  refused  :  "  If  the  jury  believe  Irom  the  evidence  that  it  is 
the  usage  and  custom  of  banks  and  bankers  to  mingle  all  the  funds  received  by 
them  in  a  common  mass,  and  that  according  to  such  usage  the  defendant  mixed 
the  funds  received  on  account  of  plaintiff  with  its  own,  and  that  its  own  funds, 
with  which  plaintiff's  were  mingled,  were  composed  of  tlie  notes  of  the  banks 
of  Illinois  received  by  it  in  its  ordinary  course  of  business  for  itself  and  its  cus- 
tomers, which  were  afterwards  depreciated  in  value  from  causes  not  witipu 
defendant's  control,  then  the  loss  by  such  depreciation   in  defendant's  funds 
must  fall  on  him."     In  aflirming  the  ruling  and  verdict  below,  Walkkk,  J.,  said: 
"  Nor  can  the  special  custom  of  banks  in  a  particular  locality  change  the  laws  of 
the  land  regulating  the  value  of  the  currency  and  fixing  the  standard  value  of 
the  current  coins.    That  parties  may  contract  to  receive  any  commodity  in  lieu 
of  money  in  payment  of  indebtedness,  is  undeniably  true.    This  can  only  be 
done  by  special  agreement,  and  not  by  usage.     No  custom  can  compel  a  creclliDr, 
in  the  absence  of  a  special  agreement,  to  receive  anything  but  the  constitutional 
currency  of  the  country.    Tlie  fact  that  the  business  men  of  the  particular  place 
have  been  in  the  habit  of  receiving  depreciated  paper  money  in  payment  of  their 
demands  by  no  means  proves  that  all  creditors  in  that  locality  have  agreed  to 
receive  the  same,  much  less  a  person  residing  luiiuhvds  of  miles  distant.    To 
have  such  an  effect,  a  special  agreement  must  be  proved."     In   Thompson  v. 
liiiigsy'^  the  plaintiff  had  for  a  series  of  years  deposited  coin  and  paper  money 
with  the  defendant,  a  banker.     Coin  at  the  time  had  one  value,  and  paper  money 
another  and  less  value,  and  the  different  deposits  were  entered  in  his  pass-books 
as  of  "coin  "  and  "paper  "  respectively.     Debts  being  at  this  time  payable  in 
"coin"  only,  the  banker  requested  the  plaintiff  to  make  his  full  balance  coin, 
which  was  done.     Subse([uently  an  act   was  passed  making  certain  treasury- 
notes  lawful  money  for  the  payment  of  debts.    The  plaintiff  continued  deposit- 
ing "coin"  and  "treasury-notes,"  then  regarded  as  currency,  and  both  wen- 
entered  accordingly.      He  afterwards   drew  for   "  coin"  —  the   bulk  of   ii  in 
balance  deposited   before   the   act.     Coin    was   refused,   and  tender  made  ni 
treasury-notes.     In  an  action  brought  for  the  market  value  of  the  coin  drawn 
for,  —  the  teller  of  the  bank  having  testified  that,  after  the  act  making  treasury- 
notes  a  legal  tender,  his  employer  uniformly  made  with  customers  depositing 
with  them  a  difference,  in  receiving  and  paying  their  deposits,  between  coin  and 


>  27  111.  526. 


5  Wall.  663. 


USA(3Kfl    KV    CONFLICT    WITH    LKOAT,    UUI-KS. 


I ::» 


Till'  (;  >iitni!lic;i)ry  Ciisfs  Utviowcd. 


ii'^ht  it  WL'II  in 
judges  ill  ready 
ses  wliicli  liuva 
I  by  a  different 
dinisslbiiity  of 
eports.  These 
1  <liivct,  conflict 
if,  would  siH-ra 
i)o  found  in  the 


30ve  CAae3.  — 

11!  followiiii;  in- 

(Iciicc  tliat  it  is 

ids  received  by 

effiidant  mixed 

,  its  own  I'liuds, 

IS  of  tiie  banlis 

<clf  iind  its  cus- 

isus  nut  withia 

endant's  funds 

M,KKI{,  J.,  said: 

m{?e  the  laws  of 

andard  vaUit:  of 

imodity  in  lieu 

is  can  only  be 

npi;l  a  c rod i lor, 

constitutional 

)articular  place 

[lyinent  of  their 

have  afjreed  to 

■s  distant.    To 

Thompson  v. 

i  paper  money 

d  paper  money 

his  pass-books 

me  payable  in 

1  balance  coin, 

lain  treasury- 

nued  dui)OHif- 

:ind  both  were 

l)ulli   of    o  in 

nder  made  o\ 

lie  coin  drawn 

ikinu:  tri-asurv'- 

rs  depositins; 

ween  coin  and 


paper  money,  and  in  all  c  i-ics  when  the  deposit  was  in  coin  they  paid  the  checks 
of  their  customers  in  ''0111  when  they  called  for  coin;  otlierwise,  treasury  or 
bank  notes,  —  the  plaintiff  offered  cvidcncf  to  show  that  the  usaijc  and  nioilo  of 
dealin,:;  between  the  said  parties  as  stated  liy  the  teller  was  the  nsa^ic  of  all  tlio 
l)anks  in  that  place.  This  evidence  wa'^  considered  in  the  Supreme  Court  of  the 
United  States  as  properly  rejected  "The  <;eneral  rule  of  law  is,"  said  Mr. 
Justice  Cmkkoim),  '*  that  if  a  merchant  deposits  money  with  a  bank,  the  title  to 
the  money  passes  to  tlic  bank,  and  the  latter  becomes  tlie  debtorof  tlie  nierchant 
to  that  amount;  and  it  is  not  perceived  that  the  evidence  offenul,  if  it  had  been 
admitted,  could  have  liad  any  other  effect  than  to  control  tlw  lieneral  rule  of 
law,  as  it  is  not  pretended  that  the  evidence  sliowed  a  special  deposit.  Viewed 
in  any  liijht  consistent  with  the  other  evidence  in  the  record,  the  testimony  was 
{•itlier  entirely  immaterial  or  inailmissible,  as  tendiu'^  to  control  the  well-settled 
rules  of  law."  In  Woodruff  \ .  M  rrhants^  Bank/  a  bill  of  cxchanfje  was  in  this 
fortn :  — 
".$l,r)00.  Di;ii;i>rr,  Novemi)er  15,  ls;58. 

"Sixty  days  after  lite,  pay  to  the  order  of  Daniel  (Jreen,  lOstj.,  llfteen  hun- 
dred dollars,  at  the  I'licunix  Hank  in  the  city  of  Now  Yorli,  value  received,  wliich 

place  to  account. 

"Yourob'd't  serv't, 

"  L.  GoDPvitD,  Detroit,  Mich. 

««To  Wm.  H.  Oriswold,  Ksq.,  Cashier  Oakland  County  Ilauk,  Mich." 

It  was  contendetl  that,  accordinjj;  to  the  custom  oi  bunker.s  autl  nuirchants  in 
New  York,  this  was  a  check,  and  was  not  entitled  to  the  days  of  <^race  allowed 
on  promissory  notes  and  bills  (»f  oxchanLce.  But  tlie  Supreme  Court  said: 
"The  effect  of  the  proof  of  usage  as  given  in  this  case,  if  sanctioned,  wouM  be 
to  overturn  the  whole  law  on  the  subject  of  bills  of  exchangi;  in  Uk;  city  of  New 
York.  W<!  need  scarcely  add,  even  if  the  witnesses  were  not  mistaken,  and  tlu; 
usage  prevails  there  as  testilled  to,  it  cannot  be  allowed  to  control  the  setih  d 
and  acknowledged  law  of  the  .Stale  in  respect  to  this  description  of  paper."  iu 
Morrison  v.  liailey,''  a  similar  instrument  was  sued  on,  viz. :  — 

•'300.  Ci.KVKi.AN'i),  Ohio,  .Mnu!  :{0,  1H53. 

"  Wicks,  Otis  &  IJrownell :  Pay  to  h.h\  Burgess,  on  the  thirteenth  day  of  .July, 
1853,  or  order,  three  hundred  dollars. 

"  K.  B.  BAI1.ICY." 

The  testimony  o.^  a  nund)er  of  hankers  .showed  a  uniform  custom  on  their 
part,  in  Cleveland,  to  regard  drafts  in  this  form  as  checks,  and  not  entitled  to 
days  of  grace.  lint  the  Supreme  Court  of  Ohio,  following  Woodmff  v.  Mer- 
chants^ Bunk^  held  that  "  any  supposed  usage  of  banks  in  any  particular  place 
to  regard  drafts  upon  the uj  payable  at  a  day  certain  after  date  as  checks,  and 
not  entitled  to  diys  of  grace,  is  inadudssible  to  control  the  rules  of  law." 
In  Allen  v.  State  Bunky^  the  plaintiffs  alleged  that  they  were  partners,  and  that 
one  of  them,  having  received  a  number  of  the  defendant's  bank-hills  in  the  col- 
lection of  debts  due  the  (irm,  for  the  purpose  of  securing  their  .safe  transnussiou 
to  the  other,  cut  each  of  them  into  two  parts,  and  enclosed  the  llrst  Iialves  on 
one  day  and  the  other  halves  on  another  day  in  letUirs  by  the  public  mail;  that 


'  M  Wend.  673. 


»  6  Ohio  St  .13. 


•  1  Dev.  &  B,  Eq.  8. 


47« 


WHEN    IN    CONFLICT   WITH    CONTKACTS,  KTC. 


The  Coiitni'lictory  (uses  Reviewed. 


the  first  parcel  came  duly  to  hand,  but  that  the  second  was  lost;  that  us  soon  ns 
the  loss  was  ascertained  they  preseutcd  to  the  defendants  the  halves  receiveil, 
offered  indemnity  afiiiinst  any  loss  by  reason  of  tlie  missinj; halves, and  deinuiuliil 
payment  of  the  whole  amount  of  the  bills ;  tiiat  the  defendants  paid  tiiem  one- 
half  of  the  sum,  but  refused  to  pay  more.  The  bill  prayed  that  the  defen(latit> 
might  be  required  to  pay  the  balance.  Tlie  defendants  replied,  inter  alia,  that 
it  was  tlicir  custom  to  pay  the  holder  of  a  half  note,  on  presentation  at  tluir 
counter,  one-half  of  the  amount  of  the  note,  which  custom  was  linown  to  tlioir 
dealers,  and  particularly  to  the  plaintiffs;  that  this  custom  was  adopted  from 
regard  to  public  convenience,  and  not  upon  a  supposition  of  their  lialiiiity,  for 
they  contended  that  no  liability  could  be  enforced  except  on  the  presentation  of 
the  entire  note.  The  court  decreed  for  the  plaintiffs.  G  vsrox,  J.,  wlio  deliv(  red 
the  opinion,  said:  •*  While  the  two  parts  exist  and  are  retained  by  the  lawful 
holder,  the  rights  and  liabilities  of  the  parties  remain  precisely  the  same  as 
before  the  division.  If  one  of  the  parts  be  afterwards  lost  or  destroyed,  tii(>  rlirlil 
of  the  former  holder  of  the  note  and  the  obligation  of  the  maker  are  the  same  as 
though  tlie  whole  note  had  been  destroyed.  Had  the  notes  in  this  case  l)eoii  jiiit 
Into  tlie  mail  in  their  original  state,  and  then  the  loss  occurred,  it  might  with 
equal  plausibiTity  have  been  urged  that  the  plaintiffs,  for  their  own  convenience, 
took  upon  themselves  the  risk  of  loss,  and  can  therefore  demand  payment  only 
according  to  the  letter  of  the  engagement.  If  the  law  warranted  such  a  usa<re 
as  that  alleged  by  the  defendants,  of  paying  upon  a  half  note,  by  whomsotvcr 
presented,  half  the  amount  of  the  note,  the  risk  of  Injury  to  one  or  the  oilier  of 
the  parties  would  be  the  same  In  the  transmission  by  mall  of  a  divided  as  of  a 
whole  note.  In  the  former  case  there  would  be.  Indeed,  a  double  chance  of 
casualties,  but  only  a  danger  of  half  a  loss  upon  each  casualty.  Such  a  usiiiic, 
however.  Is  wholly  unsupported  by  law.  The  holder  of  a  half  note,  as  such,  has 
no  right  to  any  part  of  the  money.  Such  a  usage  has  a  pernicious  tendency  to 
facilitate  the  receipt  of  money  by  the  dishonest  holders  of  half  notes,  and  therch.v 
creates  or  multiplies  temptations  to  dishonesty.  Tlie  transmission  of  dlvuied 
notes  by  several  mails  diminishes  the  danger  of  injury  as  to  one  of  the  part  us 
and  does  not  increase  it  as  to  the  other,  is  for  the  benefit  of  commerce,  affords 
additional  security  against  dishonesty  by  lessening  the  Inducement  to  comniil  it, 
and  ought  In  no  manner  to  affect  the  rights  of  the  lawful  owners  of  the  notes." 
In  Vcrmilye  v.  Adams  Express  Company,^  a  number  of  United  States  tivasurv- 
notes  which  had  been  stolen  from  the  express  company  were  purchased  by  a  lirni 
of  bankers  after  the  date  at  which,  on  their  face,  they  were  payable  or  convert- 
ible Into  bonds.  It  appeared  that  the  company,  after  the  loss,  had  been  prompt 
in  giving  warning  of  the  theft,  by  advertising  In  the  newspapers  and  dollveriiiu' 
notices  to  the  principal  brokers,  Including  the  defendants.  The  latter  Intro- 
duced evidence  to  show  that  notes  of  the  kind  in  question  contlnueu  to  bt 
bought  and  sold  by  bankers  and  brokers  after  they  had  become  due;  tliat  it  was 
not  customary  for  dealers  In  government  securities  to  keep  records  or  lists  of 
the  numbers  or  descriptions  of  bonds  alleged  to  have  been  lost,  stolen,  or 
altered,  or  to  refer  to  such  lists  before  purchasing  such  securities;  that  it  would 
be  impracticable  to  carry  on  the  business  of  dealing  in  government  securities  if 
it  were  necessary  to  resort  to  such  lists  and  make  such  examination  previous  to 

1  21  Wall.  139. 


USAUES    IN    CONILICT    WITH    LEGAL    RULES. 


477 


Tin-  ('oiitr.nlictorv  Ciisis  Ucvicwed. 


that  us  soon  ns 
lalvcH  received, 
I,  and  deiimiulcd 
paid  them  oik - 
the  defendants 
,  inter  alia,  that 
ntatlon  at  their 
I  known  to  their 
s  adopted  from 
eir  lial>ility,  for 
pri'sentation  of 
.,  who  delivireil 
ed  by  tlie  lawful 
;ly  the  same  as 
itroyed,  the  ri'.'ht 
are  the  same  as 
lis  case  been  put 
1,  it  nii^ht   with 
wn  couvenience, 
id  payment  only 
;ed  such  a  usa^e 
by  whomsoever 
c  or  the  oilier  of 
I  divided  as  of  a 
ouble  chance  of 
Such  a  usaire, 
ote,  as  such,  has 
ious  tendency  to 
»tes,  and  thereby 
ssion  of  divided 
le  of  the  parties 
mmerce,  affords 
nt  to  commit  it, 
of  the  notes." 
States  treasury- 
chased  by  a  lirni 
ible  or  convert- 
lad  been  prompt 
and  deliveriiiL' 
he  latter  intro- 
ontinueii  to  be 
due;  that  it  was 
cords  or  lists  of 
lost,  stolen,  or 
s ;  that  it  would 
ent  securities  if 
tiou  previous  to 


¥' 


purchase;  and  that  the  purchase  of  the  notes  in  question  was  made  In  the  ordi- 
nary and  usual  mode  in  which  such  transactions  arc  conducted.  It  was  held  by 
the  Supreme  Court  of  the  United  States  that,  us  to  such  overdue  paper,  a  pur- 
chaser takes  subject  to  the  ri-^hts  of  antecedent  holders,  to  the  same  extent  as 
in  tlie  case  of  other  paper  bought  after  maturity,  and  that  tlie  notes  could  be 
recovered  of  the  defendants.  "  Bankers,  brokers,  and  others,"  said  Mr.  Justice 
Mii.LGR,  "cannot,  as  was  attempted  in  this  ease,  establish  by  proof  a  usage  or 
custom,  in  dealing  in  such  paper,  which  in  their  own  interest  contravenes  the 
established  commercial  law.  If  they  have  been  in  the  habit  of  disregarding  that 
law,  this  does  not  relieve  them  from  the  consequences,  nor  establish  a  different 
law."  lu  Odllatin  \.  Bradford,^  B.  was  the  cashier  of  the  Kentucky  Insurance 
Conii)any  at  Lexington.  G.  having  obtained  from  the  company  the  discount  of 
his  note  for  $;?00,  he  drew  a  check  on  IJ.,  in  the  name  of  F.  &  G.,  for  llie  sura  of 
$290.85,  being  the  amount  he  was  entitled  to  receive  on  the  note.  B.  paid  him 
the  amount  of  the  check,  as  lie  .supposed,  but  a  few  hours  after  it  was  discovered 
by  a  clerk  in  the  otlice  that  G.  had,  by  mistake,  been  overpaid  the  sum  of  §100. 
G.  having  refused  to  pay  back  the  money,  B.  brought  an  action  to  recover  it. 
On  tlie  trial,  evidence  was  offered,  ami  rejected,  going  to  prove  a  custom  among 
banks  and  insurance  companies  not  to  rectify  mistakes  in  the  receipt  or  payment 
of  money  unless  discovered  before  the  person  receiving  or  paying  leaves  the 
otTice.  On  appeal  to  the  Court  of  Appials  of  Kentucky,  the  ruling  was  affirmed. 
"  If  such  a  custom  exists,"  said  Tui.mui.k,  J.,  "it  is  contrary  to  law,  and  ought 
not  to  meet  with  the  sanction  of  a  court  of  justice.  The  law  declares  that  money 
received  through  mistake  shall  be  refunded,  and  this  rule  (jf  law  is  founded  on 
morality,  which  makes  part  of  the  law  of  the  land.  Would  it  not  be  as  immoral 
and  unjust,  if  a  mistake  were  made  in  the  receipt  or  payment  of  money  at  a  bank, 
to  hold  the  money  obtained  l)y  sucli  mistake,  althougli  not  discovered  until  after 
the  person  paying  or  receiving  had  got  out  of  the  door,  as  if  the  mistake  had 
been  before  discovered?  There  surely  can  be  no  difference  in  morality,  and  the 
law  makes  none.  Such  a  custom  in  banking  institutions  may  be  an  evidence  of 
avarice,  but  not  of  the  i)ractice  of  justice  among  those  concerned.  We  liave  no 
hesitation  tliat  if  a  mistake  were  trade  in  favor  of  the  insurance  company,  and 
they  were  to  allege  such  a  custom  in  bar  of  the  correction  of  the  mistake,  the 
law  would  not  sanction  an  attempt  so  palpably  unjust."  In  Emery  v.  Dunhfir,- 
the  defendant's  ship,  on  which  were  the  plaintiffs'  goods,  was  destroyed  l)y  ;i 
Confederate  cruiser.  In  a  suit  for  the  freight,  which  they  had  paid  befon;  the 
sailing  of  the  vessel,  the  defendant  set  up  "  that,  at  the  time  of  the  payment  of 
the  freight,  it  was,  and  from  time  immemorial  thereuntil  had  been,  the  custom 
and  usage  of  the  United  States  of  America  aud  of  the  State  of  New  Vork,  and  of 
the  ship-owners,  shippers,  and  merchants  of,  and  of  the  shippers  from  the  said 
United  States  of  America  and  the  State  of  New  York,  that  said  freight  so  paid  in 
advance  is  paid  unconditionally,  and  not  sul)ject  to  the  risk  of  the  voyage,  and  is 
not  repaid,  l)ut  is  retained  by  the  ship-owner,  provided  that  the  goods  be  taken  on 
board  and  the  voyage  commence,  or  have  commenced."  Tlie  plaintiff  demurred 
to  this  answer;  the  demurrer  was  sustained,  and  on  appeal  this  ruling  was 
affirmed.  "  Where  a  general  rule  or  principle  of  law  like  this,"  said  the  Supreme 
Court,  "has  been  long  and  well  established,  it  cannot  be  controlled  by  proof  of 


1  1  Bibb,  209. 


1  Daly,  408. 


ivn 


J-  ' 


I  !' 


478 


WIIKN    liN    CONFLICT    WITH    CONTHACTH,  KT(;. 


riu!  Conlrailictory  Cases  Ucvunvrd. 


any  nsii<j:e  to  the  contrary.     This  disposes  of  thf  defciulant's  answer."     In  rn'ili 
V.  Jiarker,'  ow  Imndn-d  a"<'  ninety  liogslu^ads  of  siij^ar  hiiii  hci-n  siiijjpcd  ;ii  s., 
to  be  delivered  at  N.;  bnt  dnrin^  tl)(>  voya;;!',  owinjj  to  a  leak  in  the  ship,  tin 
contents  of  llfty  of  them  were  lost,  and  hut  one  hniwh'ed  and  forty  were  nccivid 
by  the  consignee,  who  refused  to  pay  freiii;lit  on  tlie  residue.     In  a  suit  for  tlic 
freij^ht  on  the  (Ifty  liojisheads,  tlie  plaintiff  off(  /ed  to  prove  that,  l)y  the  u-;a'.;v  cif 
merchants  at  N.,  frei-iht  was   payable  for  the  empty  (tasks,  under  tlie  circiini- 
stanees  of  this  easc^     A  vcu'diet  beinj;  taken  by  consent  for  the  full  aiuniini,  sub- 
ject to  the  opinion  of  th<!  Supreme  Court,  it  was  there  iield  I  hat  llie  p,,..;iiiff  wis 
entitled  to  a  verdict  for  only  one  Inindred  and  forty  casks.     Kknt,  (-.  J.,  \v!m 
delivered  the  opinion  of  the  court,  after  statin:?  the  law  to  he  that  no  fii  ijrhl  is 
due  for  gooods  which  are  destroyed  dnrinjj  the  voyai;e,  sai<l:   "The  next  point 
is,  whether  (evidence  of  usaije  iu  contradiction  to  this  ruU;  wan  aduiiss!i)li! :  und 
if  it  was,  whether  the  usasc  proved  went  the  lenu;th  of  estahlishin;;  thai  fniilii 
was  in  this  ease  due  for  tlie  snij;ar  that  was  destroyed.     *     *     *     The  test  iiiniiy 
did  not  show  that  this  usa.iie  existed,  if  the  contents  of  tlu  casks  Iiad  hccii  IoM 
by  the  means  of  the  sea  perils  durini;  the  course  of  the  voyaLie.     I  prcsiiiuc  Hi! 
no  such  usaiie  exists.     It  wouhi  be  repuirnant  to  the  jiciK  i al  rule  of  the  luaii- 
time  law.     The  true  import  of  the  testimony  offered   was  that  the  iiiasu  r  is 
entitled  to  his  freij^lit,  notwithstanding  the  ordinary  dinduui  ion  or  waste  of  ,111 
article,  arisiiiu:  either  from  its  nature  or  tlu'  defect  of  the  cask.     It  hccoiitcs, 
therefore,  innnaleri.d  to  examine  wlusther  this  evidence  of  usajic;  was  or  was  not 
strictly  compcitent;    but,  as  the  tpiestion  is  frequently  Mi^u^ested,   it   may  he 
proper  to  ol)serve,  that  Ihounh  usa.i;(>  is  often  resorted  to  for  expluiialiun  of 
connnercial  instruments,  it  never  is  or  ouiitht  to  be    received  to  coiUradirt  a 
settled  rule  of  commercial  law."     In  ,^jlclihiiis  v.  Glohr  Jnaiintaat  Cditijxcu^i,'  ,1 
policy  of  fire  insurance  contained  no  (joudition  re<iuirini:  the  a.ssure<l  to  uivi; 
notice  of  chanijes  in  adjoiniiiiC  premise;^.     On  the  trial,  tv  idence  was  offered,  am! 
rejected  by  the  trial  court,  which  went  to  show  that   i)y  a  usa.i;*!  in  New  Vxik, 
where  tlie  contract  was  made,  upon  the  occurring  of  any  circuimstance  wlierihy 
tlie  risk  was  increased  by  the  act  of  the  assured  after  the  effectiu!.';  of  tin-  insur- 
ance, notice  thereof  was  to  be  fjiven  to  the  insurers,  so  that  they  luiiihi   have 
the  option  of  continuiui;  the  policy  or  annulling  it;  on  appeal  tlie  riiliii;;  was 
atHrnied.    The  tlecision  of  the  hijiher  court  did  not  rest  alto;?ellier  upon  its  heiii',' 
a  nsa^K  local  to  New  York,  but  upon  the  jiround  that  "  if  it  were  a  {^eueral  u>a;:i' 
it  could  not  be  given  in  <!vidence  to  alter  the  legal  ([lenuion  and  effect  of  ilie 
policy."     In  Hone.  v.  Mutuni  Safety  Lisim  ,ce  Coinpani/,''  it  was  held  not  eonipi- 
tent  to  limit  a  contract  of  ri'insiirance  by  proof  of  a  usage  in  tin-  city  of  New 
York  by  which  the  reassuror  paid  tlie  same  proportion  of  the  entire  loss  sus- 
tained by  the  original  insured  tliat  the  sum  reinsured  bore  to  the  ilrst  insur  :ii'  1 
written  by  tlie  reinsured.     "  The  word  '  reinsure,'  "  said  Sandkokd,  J.,  "  Im-  a 
detiiiite  m'j.  ning  settled  in  the  law  for  two  centuries  past,  and  having  the  saiur 
meaning  in  its  ordinary  and  popular  sense.     It  is  equally  <'ffcctive  with  the  won! 
•insure,'  and  it  has  been  d(>cided  that  the  word  '  insure '  may  bi  used  in  a  pohcy 
of  reinsurance  with  the  same  force  an^i  validity.     Tlic  proof  offered  attempts  m 
wrest  the  term  'reinsure'  from  the  established  sense,  and  make  it  correlai.ivi', 
as  between  the  first  iasurer  and  the  reinsurer,  whenever  the  former  insures 


2  Johns.  327. 


*  2  Hall,  632. 


s  1  SiunU.  i:!7. 


^'^. 


'(',. 


USA(Ji:S    IN     CONil.K'l'    WITH    I.KiiAI.    lUII.KS. 


471» 


Till'  rdiitnidictoiy  (Juses  lioviewcd. 


iwcr."  Ill  /•'''/'/' 
n  shipixcl  at  S., 
in  tli(!  ship,  the 
ty  wore  rcccivi  il 
In  a  suit  for  llu' 
,  by  tlu:  (is:i'j.i'  of 
idcr  tlic  circinii- 
iill  iimniinl,  --iib- 
llic  i-i.-.nlit't'  was 

<KNT,  C.  J.,  will) 

I  hat  no  fniirhi  is 
"  The  ni'M  point 
a(hni~<s!i)li; :  aiul 

diiiiii  that  frcidil 
'  Th(!  tfsliiimuy 
■;!<>  had  i)('i'ii  lo-l 
I  iM'fsuiiu"  I  hi; 
rido  of  the  iiiaii- 
at  the  ukkU  I'  is 

II  or  wasti;  of  an 
sk.  It  bccoiMcs, 
(!  was  or  was  iioi 
•sl<!(l,  it  may  i)(^ 
ir  oxplanaliim  (if 

to  coiUradicl  a 
tiici',  C<)iiii)uii'j,-  II 

assurcvl  to  :j.ivi; 

was  offcivd,  and 
'j,{',  in  Now  Yorii, 

nstaaco  whorchy 

iiii';  of  the  iiisiir- 

tliey  iiiiniu  liav« 
llu-  riilinn'  was 

or  upon  its  hoin? 
a  ^I'tii'ral  ii^:i'-'i' 

ud  t'ffoot  of  ihi' 
lu'ld  not  oomiH'- 
Ihi-  city  of  New 
entire  loss  siis- 

le  llrist  iiisiir  lU'T 
OKI),  J.,  "ha-:i 
lavini;  tlu;  saiiu; 
,•  witli  tlie  wonl 
used  in  a  policy 

iTi'd  ai.toinpts  lo 

0  it  corndai.ivf, 

former  insures 

a  1  SaiuU.  n7- 


more;  than  the  lattfM',  witli  tlu-  distincl  and  diffcront  contract  of  double  Insurance. 
Ill  our  viow,  it  scn-ks  t.o  vary  an  express  aiirceiiKMit  l)etw(!(!n  tlicsc  parties  couclied 
in  plain  Ian;j;ua'j;<;,  liaviiiuc  an  established  l("'j;il  as  well  as  conventional  ineaniiiu:. 
and  \\v  an;  cntindy  trlear  that  the?  testimony  of  iisa<;c  (>na;ht  not,  to  be  received." 
In  Di/ilorJc  V.  lilackhurn,'  the;  plaintiffs  w(!r(!  the  execi.tors  of  the  captain  of  a 
ship,  of  which  the  (hifendaiH  was  tiie  owiK-r,  and  it  appi^anul  that,  when  'jt  Mu' 
Cape  of  (Jooil  Hope,  the  captain  had  o(;(;asion  to  draw  a  bill  upon  Kimland  on 
account  of  the  shij),  for  the  sum  of  £l,r)()(),  and  on  account  of  the  oxcliaime  at 
tli(^  time  he  received  as  premium  the  sum  of  i:\'M.  The  counsel  for  tlie  plaintiffs 
contended  that  this  money  beloni^ed  to  the  t.estator,  and  offered  to  call  witnesses 
to  prove  that  it  was  usual  for  the  caplaiu  of  a  slii|),  in  such  cases,  to  Ix;  allowed 
for  his  own  benellt  any  aihantii'^e  arisin;^  from  the  state  of  the  «!xchanLie.  Hut 
Lord  I'r  i,i'.\i(oi!in;(;ii  ordeivd  a  noiisidl,  sayiui;:  "  I  am  clearly  of  opinion  that 
this  preniiuiu  l)elonLred  to  the  owiuir,  mid  not  to  tlu;  captain.  If  a  contrary 
nsase  has  prevailed,  it  lias  been  a  iisau;e  of  fraud  and  plunder.  What  pr-teiiee 
can  there  be  for  an  a^jent  lo  make  a  profit  by  a  t)ill  upon  Ids  principal?  Thiv 
W'uld  be  to  iz;ive  the  a.:;eul  an  interest  a.  mik;  his  duty.  I  b(dieve  that  in  thi- 
very  way  servants  of  t.lie  jmhlic;  al)road  have  been  ,!j;uilty  of  enormous  [»ecula- 
tion.  Tiie  testator  was  uiuhmbtedly  bound  to  debii,  himself  for  the  £i:{l  as 
mueli  as  for  any  otiier  sum  of  mom-y  he  re  vi\ed  on  the  defendant's  account." 
In  .IfiHiiPsotn  Gi'.ntral  lliUmnd  Cmiiiuvi:/  v.  M'ir<jan,''  a  custom  ainonn  insurance 
atjeiils  I'lil.  tliey  an' eiiLil.led  i  >  all  dividends  declared  by  mutiuil  coiiipanies,  in 
lieu  of  other  coi.ipinisation  for  effectiii;^  th(>  insurance,  was  held  l)a(l.  "  Xo 
custom,"  said  tl.e  court,  "  (;an  be  established  wliicli  contravenes  a  well-sei  ile,| 
prineipli'  of  law.  It  has  been  the  .settled  doctrine  of  the  courts,  both  of  law 
and  eipiity,  for  centuries,  that,  ;ui  ai^ent  eannot  aiiprojiriati;'  to  his  own  use  any 
portion  of  tli(;  profits  aii-iii'.:'  from  the  business  of  h's  priiKiipai.  'I'lie  (•ii^toin 
proposed  to  be  eslabli-lied  overrides  this  rule  of  law,  and  authoriz-es  the  ,i'.ieiit , 
not  to  appropriate  to  liiinself  a  part  only,  but  the  whole  of  the  proptjrty  arisini; 
from  the  business  of  his  principal.  Such  a  custom  iiei;ds  only  to  be  stated  to  be 
repudiated.  If  tohirated,  it  wouid  lead  to  the  grossest  abuses.  Insurance- 
broUers  would  be  induced  to  bces^i  Members  of  miiMial  iiisur.mce  coin[)anies; 
all  property  intrusted  to  them  would  be  insured  in  those  companies,  not  infe 
qiKMitly  without  re.^ard  to  expense,  or  even  the  responsibility  of  the  company. 
so  tliat  it  should  exist  loni:  enouii'li  to  enable  them  to  dispose  of  the  dividends 
which  nii.L'hl  be  aw.arded  to  them.  The  riiihts  of  all  the  parlies  are  b(,'st  secured 
by  riMpilrin^i  the  broker  lo  diarize  such  commissions  as  he  may  be  fairly  entitled 
to,  and  permittiii'jj  the  cusioiuer  to  take  whatever  prollts  may  be  eariicl  in 
ilie  course  of  the  bii-iness."  In  /inisin  v.  Chir/c,'  the  Court  of  Api)eals  of 
Maryland  rejected  evidence  of  a  custom  ainoim' brokers  in  the;  city  of  Haltiinore 
that  ill  exchanL;es  of  real  estate  they  arc;  entitled  to  a  commission  of  two  and  a 
half  per  cent  from  each  jiarty  on  the  amount  or  value  of  the  property  received. 
Said  Mii.i.int,  J.:  "  It  is  a  ,:;eneral  rule  that  a  |)arty  cannoL,  in  any  ai^ency  of  this 
kind,  act  as  aiient  or  broker  for  both  vendor  and  vendee  in  respect  to  the  same 
tninsaction,  because  in  such  case  there  is  a  necessary  eonllict  between  his 
inlcre.a  and  his  duty.  The  v(;ndor,  in  the  employment  of  an  ai;ent  to  soil  his 
property,  bary;aius  for  the  disinterested  skill,  diliuience,  and  zeal  of  the  .ijeut  for 

>80amp.43.  •■' 5'2  Uaii).  217.  Ml  >Y(I   1.^-*, /i/i^^,  n.  4:11. 


Hi 

^1 


i    ^ 


Hi  '  • 


1 


§  -i'l'  ■ 


480 


WIIKX    IN    CONFLICT    WITH    CONTIiA("rs,   KTC 


The  Coiitriidictory  Cn^os  Reviewed. 


his  own  exclirsive  benefit.    It  is  a  confidence  nece.ssarily  reposed  in  the  agent. 
that  he  will  ict  with  a  sole  regard  to  the  interest  of  the  principal,  as  far  us  lie 
lawfully  may.     The  seller  of  an  estate  is  presumed  to  be  desirou.s  of  .sellin^r  it 
at  as  high  a  price  as  can  fairly  be  obtained  for  it,  and  the  purchaser  i.s  e.jually 
presumed  to  desire  to  purchase  it  for  as  low  a  price  as  he  may.    The  interests  of 
the  two  are  in  conflict.     Emptor  emit  qunm  minimo  potest;  venditor  vendit  quam 
maxima  potest.     But  if  the  same  party  be  allowed  to  act  as  agent  for  both,  it 
becomes  his  interest  to  have  this  maxim  reversed,  or  at  least  to  sacrifice  the 
interests  of  one  or  both  of  his  principals  in  order  to  advance  his  own,  by  reciiv- 
ing  double  commissions.     Hence  the  law  will  not  permit,  an  agent  of  the  veiiior, 
whilst  that  employment  continues,  to  assume  the  essentially  inconsii  cut   nad 
repugnant  relation  of  agent  for  the  purchaser.     *     *    *     After  wli.i'    uis  been 
said,  it  is  hardly  necessary  to  add  that  the  usage  or  cu.stoui  i.  lad  on  oaimot 
avail  the  appellant.     A  usage  in  contravention  of  a  well-settled  and  salutary  rule 
of  law  cannot  be  sustained  by  courts  of  justice."     In  Fariistcortii  v.  Hammer,'  a 
similar  custom  araong  the  brokers  of  Boston  was  rejected  in  the  Supreme  .1    i: 
cial   Court  of   Massachusetts,   Biuiu.ow,  C.  J.,  delivering  the  opinion  of   ;,ie 
court,  and  using  this  language:  "The  prauiple  on  which  rc^ts  the  well-settled 
doctrine  that  a  man  cannot  become  the  piuchastr  of  property  for  his  own  u.se 
and  benefit  which  is  intrusted  to  him  to  sell,  is  equally  applicable  when  ^'<o  -'nie 
person,  without  the  authority  or  consent  of  the  parties  interested,  m-  lei.;i-'S 
to  act  as  the  agent  of  both  vendor  and  purchaser.     The  law  does  not    .  »     a 
man  to  assume  relations  so  essentially  inconsistent  and  repugnant  to  each  otlier. 
Tlie  duty  of  an  agent  for  a  vendor  is  to  sell  the  property  at  the  highest  price ;  of 
the  agent  of  the  purchaser,  to  buy  it  for  the  lowest.     These  duties  are  so  utterly 
irreconcilable  and  conflicting  that  they  cannot  be  performed  by  the  same  person 
without  great  danger  that  the  rights  of  one  principal  will  be  sacrificed  to  pro- 
mote the  interests  of  the  other,  or  that  neither  of  then,  will  enjoy  the  benefit  of 
a  discreet  and  faithful  exercise  of  the  t;>i<t  vepo.    d  in  the  agent.    As  it  cannot 
be  supposed  that  a  vendor  and  purchaser  would  employ  the  same  person  to  act 
as  their  agent  to  buy  and  sell  the  sa.ne  'property,  it  is  clear  that  it  operates  as 
a  surprise  on  both  parties,  and  is  a  breach  of  the  trust  and  confidence  to  be 
reposed  in  the  agent  by  them  respectively,  if  1  is  inti  nt  to  act  in  the  same  trans- 
action as  agent  of  both  is  concealed  from  tl  em.     It  is  of  the  essence  of  his 
contract  that  he  will  use  his  best  skill  and  judgment  to  promote  the  interest  of 
Ills  employer.     Th'w  he  cannot  do  when  In;  acts  for  two  persons  whose  interests 
are  essentially  adverse.     He  is,  therefore,  guilty  of  a  breach  of  his  contract. 
Nor  is  this  all.     He  commits  a  fraud  on  his  principals  in  undertaking,  withoir 
their  assent  or  knowh'dge,  to  act  as  their  mutual  agent,  because  he  conceals 
from  them  an  essentia!  fact,  entirely  within  his  own  knowledge,  which  he  was 
bound,  in  the  exercise  of  good  faith,  to  disclose  to  them.     Such  being  the  wi'U- 
settled  rule  of   law,  it  follows  that  the  c\idence  offered  by  the  plaintiff  was 
inadmissible.     A  custom  or  usage,  to  be  legal  and  valid,  mu.st  be  reasonable  and 
consistent  with  good  morals  and  sound  policy,  so  that  parties  may  be  siippoNeil 
to  have  made  their  contracts  with  lefercnee  to  it.     If  such  a  usage  is  shown  to 
exist,  then  it  becomes  the  law  by  which  the  riiihts  of  the  parties  are  to  be  regu- 
lated and  governed.    But  the  usage  on  which  the  plaintiff  relied  was  wanting  in 

>  1  Allen,  494. 


USAGKS    IN    CUM'LKl'    Willi    l,i:UAI.    UULES. 


4«1 


Till-  Coiili'.i  licloi-y  C.i>i'>  R'viewed. 


these  essunlial  clciiicnts.  It  would  be  nnrcasoiiahk',  because  if  cstablislied  it 
would  operate,  to  |)i'eveiit  the  f;iitlifiil  fullllinent  of  the  contract  of  amnicy.  It 
would  be  contrai'y  to  j^ood  morals  and  sound  policy,  because  it  would  lend  to 
sanction  an  iinwari-antable  coii(;ealnu'nt  of  facts  essential  to  a  contract,  and 
operati!  as  a  fraud  on  parlies  wliu  liail  a  rij;lit  to  rely  on  the  confideui  ■  rep>>sed 
in  their  aumUs."  In  Miujce.  v.  yl/'.■//^s.■>«,'  A.,  a  broker  employed  by  15.  to  sell 
certain  railway  shar(;r^,  ai^rced  wiih  C,  D.'s  broker,  to  sell  him  lifly  shares,  of 
which  A,  alLcrwards  informed  his  clerk  at  his  odice,  who  made  an  entry  in  his 
book  as  of  a  sale  from  A.  to  C,  and  a  conlract-notc  to  that  effect  was  sent  to  C. 
A.  subs(M|uenlly  saw  iIk!  entry  in  the  ii.iok,  and  altered  it  by  wrilin>;  in  tlie  name 
of  1>.  as  selK;r.  Anotlii;r  note  wk  aro<)riliii'j;ly  sent  the  sanu'  ('vciiiiiu:  or  the 
next  niorninij;  to  C,  l)nt  C.  received  t!i;;m  both  tou;ellier;  he  did  not  return  the 
first  note,  nor  did  A.  re(|ucsl  it.  In  an  action  by  I),  aii'ainst  A.  for  breach  of  the 
ji^'reemcnt  in  not.  compk'ling  the  sali;,  Pattksox,  J.,  left  it  to  the  jury  to  say 
wh(;llier  the  second  note  was  a  correclicjn  of  a  mistake;  in  the  first,  and  told  the 
jury  that  if  tiie  defendani  entered  into  a  written  contract  in  his  own  name,  ho 
could  not  aft('rwar<ls  set  up  that  he  n'as  acliuLC  merely  as  a  brokci',  and  that, 
althoii'j:h  known  to  be  a  broker,  if  he  si;;iu;d  the  contract  in  his  u\s\\  name  ho 
\va-^  iial)l<  .  lie  also  rejet'tcd  (!\ideiice  t.liat  it  was  the  custom  in  l,i\('ri)ool  to 
>cud  in  brokers'  notes  without  disdo^inuf  the  principal's  name.  TIk;  plaintiff 
liaviii'.^  recoveretl  a  vei'iliet,  the  direclion  aiid  ruliuLi;  of  the  trial  judiie  \vei'e 
ulliiued  by  the  court  in  banc.  "The  custom  offered  to  be  pri)\e>l,"  said 
\i  i)i;i{so.\,  B.,  "  is  a  custom  to  violate  the  common  law  of  l'hij;laud."  In 
'i'l-if  man  v.  Lodcr,'  L.,  a  merchant  ri;sidinj];  at  St.  Telersburg,  carried  on  a 
!)u>in(^ss  in  London  tlirouj^h  II.  II.,  ha\iu,sj;  ceased  to  represent  L.,  contracted 
with  T.  to  sell  him  tallow,  intendiu'j;  to  make  the  contract  for  himself,  but  T. 
tli'.;.:;lil  him  .in  ai;eni,  for  L.,  as  before.  The  contract  was  made  by  \V.,  a  broker 
actinu;  for  both.  lie  siixned  bouniit-anil-sold  notes,  the  former  beuiunint;, 
"15ought  for  T.,"  ai.d  the  latter,  "Sold  for  II.  to  ujy  principals."  IL  was  held 
that  L.  was  liable  tor  liie  non-delivery  of  the  tallow,  and  that  evidence  of  a  cus- 
tom in  the  tallow  trade  that  "a  partv  ini.nht  reject  the  undisclosed  |)rin('lpal,  and 
look  to  the  broker  for  the  completion  of  the  contract,  was  ina(lmis>ible."  la 
111-  durd  V.  Ki  /liitjfj,-^  A.,  a  woel-liroker  in  Boston,  sent  to  B.,  a  wool-dealer  in 
il.iriford,  samples  of  foreii;'u  wools  in  bales,  wiiich  he  was  selliuji;  on  coinmis- 
sioii,  and  H.  offered  to  purchase  al  the  prices  slated,  if  equal  to  the  samples.  A. 
aeeepted  the  offer,  provided  B.  wuiild  come  to  Be  sloe  and  examine  liie  wool. 
I'.,  went  to  Bosion,  and  after  exaiuinin:.!;  a  portion  oi  the  bales  (and  haviiiu;  tlic 
opportunity  to  examine  all  and  open  them,  which  he  declined),  pur<'hased  the 
u  »ol.  It  proved,  liowcver,  unknown  ii>  A.'s  prineip.il,  to  have  been  deceitfully 
packed,  and  much  in  the  interior  of  the  bales  was  rotten  and  worthless.  In  an 
action  brought  by  H.  ajiainsL  the  principal  to  recos'er  liauiiiL'es,  it  was  held  by 
tlK-  Supreme  Court  of  the  United  Slates  that  ilie  rule  of  mnot  emptin'  ajiijlied, 
luul  that  evidence  was  not  admissible  to  (H)utrol  that  rule,  and  to  sho*  thai  by 
the  custom  of  menilKuit^  and  dealers  In  wool  in  l)ales  in  IJoston  :iiid  New 
York, — the  two  principal  market  -  in  the  c.ninl  i_v  for  wool,  -  tlierc;  is  an  nnidied 
v.arranly  by  the  seller  to  the  purchaser  that   liie   wool  is  iiol  falseh  or  deceit- 


t  -.if 


2Mcu.  &  W.  110. 


•I  11  Ad.  .V  K.  589. 


•  10  Wall  VM.anle,  p.  4a4. 


M'l 


482 


WHEN    !N    CONFLICT    WITH    CONTRACTS,  ETC. 


The  Contradictory  Cases  Reviewed. 


i  \ 


fully  packed.  "It  is  appiiroiit,"  said  Mr.  Justice  Davis,  "that  the  usage  in 
question  wa.s  inconsistent  witli  tlie  contract,  which  the.  i)artius  chose  to  make;  for 
themselves,  and  contrary  to  tlie  wise  rule  of  law  ^iDverning  the  sales  of  pcrsoiiul 
property.  It  introduced  a  now  element  into  ihoir  contract,  and  added  to  it  a 
warranty  winch  the  law  did  not  raise,  nor  the  parties  intend  it  to  contain.  Tic 
parties  negotiated  on  the  basis  of  cnvmf,  nnjdDr,  and  contracted  accor(lin;;ly. 
This  tliey  had  the  right  to  do;  and  by  the  terms  of  tlie  contract  the  law  placed 
on  the  buyer  the  risli.  of  tlie  ijureiiasc,  and  relieved  the  seller  froi^i  liability  for 
latent  defects.  liiU  tliis  usage  of  trade  steps  in  and  seel^s  to  oli^siige  tlic  jjosj- 
tion  of  the  parties,  and  to  impose  on  tlie  seller  a  l)iir(l(!n  whif.-ii  the  law  said,  on 
maliing  his  contract,  he  should  not  carry.  By  this  means  a  new  contract  is 
made  for  the  parties,  and  their  rights  and  lial)ilities  under  the  law  essentially 
altered.  This,  as  we  have  seen,  cannot  l)e  done.  If  the  doctrine  of  can-tit 
emptor  CAn  be  clianged  by  a  special  usage  of  trade  in  the  manner  proposed  by 
the  custom  of  dealers  in  wool  in  liistoii,  it  is  easy  to  see  it  can  be  clian:r(!il  in 
other  particulars,  and  in  tliis  way  tlie  whole  doctrine  frittered  away."  In  Dixld 
V.  Farlow,^  a  usage;  in  the  hide  and  leather  trade  in  IJoston  to  impliedly  warrant 
all  goods  to  be  of  merchantable  (luaiity  was  rejected.  "The  decisive  oljjcctioii 
to  its  recogniti<m,"  said  UuiKi.ow,  C.  J.,  "  i^  that  it  embraces  an  chiiK  nt 
directly  contra  .7  to  the  ancient  and  v,-e!l-est,al)lish('d  rule  of  the  common  lav,-, 
that  a  vendor  cannot  in.;  held  resijon^ible  for  the  (luality  of  goods  sold,  if  l.c 
makes  no  warranty  or  reiiresentation  concerning  their  nature,  condition,  or  um-v- 
chantaljie  value.  In  otlier  words,  it  abrogates  to  a  certain  extent  the  maxiin 
caveat  emptor,  and  puts  on  the  vendor  the  i)urden  of  warranty,  although  he  may 
be  ignorant  of  the  quality  of  tlie  articles,  or  may  have  liad  no  means  of  ascer- 
taining their  condition  or  value,  and  may  have  liad  no  intention  of  selling  tin; 
articles  with  wiirranty.  Hacli  a  usage  is  very  like  the  one  relied  upon  in  tlie 
leading  case  of  Thtnnpxon  v.  yls/iion,'-' which  was  held  invalid  and  of  no  effect, 
because  it  tended  to  introduce  vagueness,  confusion,  and  nncerlainty  into  tlie 
rules  regulating  the  rights  and  oliligations  of  partic:s  under  contracts  for  tlio 
sale  of  merchandise."  In  TliompHoii  v.  Ashlon^-^  which  was  decided  i)y  tlie 
Supreme  Court  of  New  York  in  1817,  the  plaintiff's  a'jrent  went  to  the  store  of 
the  defendant  to  purchase  crockery-wan;,  and  the  hitter  sold  liim  forty--^ix  crates 
of  crockery-ware,  according  to  the  printed  catalogue  of  certain  auctioneers  in 
whose  store  the  crockery  was  for  sale,  which  catalogue  conformed  to  tlie  invoice. 
The  agent  did  not  open  tlie  crates,  but  after  they  were  sent  to  tlie  plaintiff 
several  of  thein  were  found  to  be  bad,  consisting  of  ware  of  an  inferior  (juality. 
Tlie  plaintiff  desired  to  rescind  the  sale,  but  the  defendant  refusing,  he  brought 
an  action  for  tlie  fraud,  and  on  the  trial  ()ffered  to  prove  that  it  was  the  eustoiu 
and  usage  of  nnu'chants  in  tliis  article  tliat  the  purchaser  purchased  and  the 
seller  sold  on  tlie  invoices  without  opening  tlie  crates  or  examining  the  ware  in 
them,  and  that  it  was  the  uniform  understanding  in  the  trade,  in  such  transac- 
tions, that  tlie  cvhibiLion  of  the  invoices  amounted  to  an  undertaking  on  the 
part  of  the  seller  that  the  ware  was  good  and  mereliantahle.  The  trial  judge 
rejected  this  ovldi;iie.e,  and  the  phiinliff  was  nonsuited.  On  appeal,  the  court 
sustained  the  ruling,  saying;  "The  evidence  offered  of  a  u>age  or  cu'^tem  ia 
relation  to  the  sale  of  crockery-ware  was  properly  rejected.     No  custom  in  the 


If'    '=),    '  ' 


t  U  Allen,  426. 


•  11!  JohiiN.  410. 


s  Hupra. 


USAQKS    IN    COM'LICT    WITH    I.KG.M.    IIUI.KS. 


4«.*i 


TIr'  CoiitTiUlictorv  Tascs  Ilcvh  wi  d. 


sair  of  iiu;,  iiurtic.iilar  description  of  good'^  ciin  be  admitted  to  control  the  gei> 
oral  rules  of  law.  Sut-h  a  principlo  would  be  oxtrcMuciy  pernicious  in  its  cousi 
quenccs,  and  rcndfM-  vai^jo  and  uncertain  all  the  rulis  of  law  in  the  sale  o! 
chattels."  In  J}ic/dnsoii  v.  (ray,' a  sale  had  been  made  of  unprinted  sa'iin" 
cloths  purchased  of  the  manufacturers  l)y  sample,  and  it  appeared  that  tin-  huiK 
of  tli(!  uoods  was  not  (upial  to  the  sample;  that  both  the  sample  and  the  bulk  o' 
the  "xoods  weri!  d;r  i<j;od  by  mildew,  and  that  the  defect  was  latent  an<I  couli! 
not  be dlscoven-il  lil  tlie  jjjoods  were  printed.  The  defendant  offercjd  c  idenc  • 
In  un  action  for  lUe  p;i<:e  of  the  ^oods,  of  a  nsaue  of  nierciuints  by  wiru!h,  ii' 
such  cases,  the  seller  should  make  jiood  to  the  purchiisi-r  tin;  damage  occ^asionci' 
by  the  defect.  The  court  admitted  this  evidence,  and  the  jury,  in  ausw-r  to 
special  (piestions,  found  that  the  us;i;:;e  existed;  that  there  was  a  defect  in  tlii' 
i:;oods;  that  it  diminished  their  value  in  the  sum  of  $1, 1.>(;.'J;};  that  the  goods 
were  not  equal  to  the  sample,  and  that  this  last  defect  diminished  the  value  of 
tlie  u'otxls  in  tile  sum  of  .<r,17.18.  The  plaintiff  luid  a  verdict  for  the  halance  of 
the  price  at  which  the  p;o()<|s  were  barjj;ained  for,  deducting  the  sum  of  $517.1  H  — 
thus  ri'jcctiuy;  the  effect  of  the  usage.  On  appeal,  the  jud-iuient  was  allirmed, 
the  court  holding  that  the  deduction  of  I^SIT.IS  was  pnjperly  allovvcd.  "The 
sale,"  said  Thai'max,  J.,  "  was  by  sami)le.  On  such  a  sali;  it  is  admitted  tlii: 
the  h'.w  implied  a  warranty  that  the  bulk  of  the  goods  shall  be  equal  in  quality 
to  the  sample.  The  jury  have  found  that  these  goods  were  not  equal  to  the 
samp!",  and  have  assessed  the  damages  at  S.'dT.l.S.  This  sum  is,  therefore,  to 
he  (I'ducted  from  the  agreed  price."  But  tlie  usage  sot  up  in  the  case  w.i-; 
adjudged  invalid.  After  reviewing  the  cases  in  which  usages  in  opposit'on  lo 
rules  of  law  had  been  rejected,  (Jiiai'.m.vn,  J.,  said  :  "  Tiiere  is  no  necessity  for 
such  usages;  because,  if  the  parties  agree  that  there  shdl  be  a  warranty  wliere 
the  law  in\plies  none,  they  can  insert  the  warranty  in  the  bill  of  sale,  or  if  the 
manufacturer  sells  without  warranty,  he  can  so  express  it.  But  if  such  usag  •-• 
wer(>  to  prevail  they  would  be  productive  of  misunderstanding,  liligation,  .uid 
frecpieiU,  injustice,  and  would  be  deeply  injurious  to  the  interests  of  trade  and 
counnt'ree.  They  would  make  it  iirc(!ssary  to  prove  the  law  of  ttu;  case  i)y 
witnesses  on  the  !■  taud,  and  it  would  be  settled  by  the  jury  in  eaeii  particular 
case.  I'ublic  poTn^y,  therefore,  requires  that  where  parties  assume  obligations 
which  the  law  doi^s  not  impose,  oi"  release  obligations  which  it  does  impose,  it 
sliouhl  be  done  by  expri!ss  contract."  In  Whitoiore  v.  Su%Uk  Boston  /ran  Com- 
pmiij,-  a  usage  of  founders  not  to  warrant  their  castings  against  latent  defects, 
or,  in  the  ease  of  patent  defects,  to  bi;  entitled  to  have  the  castings  returned  in 
.1  riuisonable  time,  ami  to  have  the  option  of  replacing  thei.  with  new  ones,  was 
reje('te<l.  In  Markham.  v.  Jnndon,^  the  defendants,  who  were  stock  brokrrs, 
purchased  certain  slocks  for  plaintiff  in  their  own  names  and  with  their  own 
funds,  he  depositing  with  them  a  "  margin  "  of  ten  per  cent,  wliich  he  agreed  to 
"keep  good."  The  plaintiff  having  failed  to  "keep  the  margin  good,"  the 
defendants  sold  out  the  stock  without  notice  to  him.  It  was  held  by  the  Court 
of  Aopeals  that  th(^  relation  b'-tween  the  parties  was  that  of  pledgeor  and 
pledgee;  that  a  sale  under  such  circumstances  without  notice  was  a  conversion; 
un  1  tliat,  in  an  action  by  tlic  plaintiff  for  such  conversion,  evidence  of  a  usage 
tliat  stock  hi  Id  as  in  this  case  might  be  sold  by  the  broker  whenever,  by  the  fall 


7  Allen,  29. 


<  2  Allen,  52. 


'  41  N.  Y.  235. 


484 


WHKN    IN    CONFJl,ICT    WITH    CONTRACTS,  ETC. 


Tlio  C ninidictory  {}ascs  Examined. 


of  the  stock  in  tlu-  ni!irl<(U,  ilii;  "margin"  was  exhausted  and  not  renewed,  was 
inadmissible,  because  in  (lirccl  variance  witii  tlie  rules  of  law  applicable  to  llii! 
relation  of  the  parlies.  "This  was  an  offer,"  said  IIuxT,  C.  J.,  referrin,<i  to 
I  lie  evidence  rejected,  "not  to  ('xplain  the  nieanina;  of  particular  terms,  or  to 
prove  attending;  circumstances,  to  enable  the  con  it.  to  construe  the  aj'reement, 
but  to  change  the  rights  of  the  parties  to  a  contract.  By  the  law,  as  I  have 
interpreted  it,  the  customer  did  not  lose  the  title  to  his  stock  by  any  process 
le.-5s  than  a  sale  upon  reasonable  notice,  or  by  judicial  proceedings.  Tiie  broker 
iiad  no  right  to  scdl  without  such  a  notice.  A  i)raeticc  or  custom  to  do  otherwise 
would  h.ave  no  more  force  than  a  custom  to  protest  notes  on  the  lirst  day  of 
';ra<,'e,  or  a  eiistoin  of  brokers  not  to  purchase  t!ie  shares  at  all,  in  a  case  like 
liie  i)resent,  but  to  content  themselves  with  a  UHinorandum  or  entry  in  their 
.books  of  the  contract  made  with  their  customer."  This  case  was  followed, 
iieveu  years  later,  in  Baker  v.  Drake,*  decided  in  the  same  court  in  1870. 


It  t 


§  217.  Same  —  The  above  Cases  examined. — Ciiai'Max,  J.,  in  Dickinson  v. 
6'a",-' attempted  to  reconcile  the  cases  in  whicii  usages  operating  in  (sontraven- 
tiou  of  law  have  been  admitted  witli  those  in  whicli  similar  usages  !iav(!  I)e''ii 
rejected.  Tiie  former  he  described  and  classed  as  having  reference  to  i)e(uli,ir 
habits,  modes,  or  courses  of  business;  the  latter,  as  adopting  a  peculiar  or  local 
rule  of  law  contrary  to  a  general  rul  ■  of  law  ajiplicabh?  to  the  particular  case, 
liut  he  was  forced  to  admit  that  the  distinction  was  rather  tine,  and  would  l)y 
no  means  I'econcile  all  the  contrary  cases.  It  is  plain  that  the  cases  wliich  we 
lia\  e  groui)e(l  in  the  preceding  section  arc  capable  of  no  such  classilleation,  and 
can  be  tested  by  no  such  ])rineiple  as  suggested  in  Dickinson  v.  Ga;/.  Tliey 
v\hibil,on  the  contrary,  so  serious  a  conllict  with  the  iivinciples  upon  wliich  rest; 
those  decisions  in  wliich  e\  ideiice  of  usage  has  been  admitted  for  the  purpose 
of  carrying  out  the  agreenuiils  of  i)arties  that  any  attemiit  to  reeoiieile  them 
beconii  s  impossil)l('.  (>f  the  score  )r  more  ,)f  cases  set  out  in  the  |)revj()us  sec- 
tion, in  whicli  conrnereial  custom  were  rejected  by  different  courts,  not  more 
.liau  three  or  four  ran,  in  the  light  of  tlie  law  asexliibllcd  in  this  treatise,  be  sns- 
Uiiued  :  and  even  in  these  eases  their  inadmissibility  (K'i)eiided,  not  on  their  licing 
in  coiiMiCt  with  a  rule  of  law,  but  on  their  violating  a  rule  of  public  policy.  Thus, 
the  custom  of  bankers  to  mix  all  the  funds  received  by  them  in  ,i  common  muss;' 
to  disiinguish  between  coin  and  pajjcr  in  the  paying  of  deposits;  *  to  rogaril  cer- 
tain instruments  as  checks,  and  not  enlithKi  todays  of  grace  ;•''  the  custom  of 
iiisi.iers  to  receive  notice  of  increased  risks,*  or  to  limit  the  contract  of  reinsiir- 
.iiice;  ■  the  usage  of  lirokers  that  a  vendee  might,  at  his  o])tlon,  reject  the  umlls- 
elosed  principal  an!  look  to  the  broker  fi>i-  tiie  completi'iii  of  the  contract;'^  the 
■custom  t)f  merchants  that  on  Ih'  s;il(;  of  wool  there  is  an  imilied  warranty  tli;il 
the  wool  is  not  falsely  or  d  •<  .tfully  packed,"  t!i;it  goods  sold  are  of  mcrcliaiit- 
;i!)!i'  (|uality,'"  tbat  the  .seller  shouid  make  Lroorl  to  the  iinycr  damages  ari-iuu' 


'  (Hi  N.  V.  r>i^. 

7  Allen.  2!). 

Marine  Bank  v.  ChniMMer,  n.  le.,  §246 
••  'l'li.>ni|>Biin  r.  Uig<^>,  a titr.  f- -I!'.. 
•  Woodnrtf  r.  Mcri'liiiiils'   Hank,  Morrison 
r.  r..iile.v,  mile,  S'.Mi). 

'■  .Stcbljins  V.  (il')l>i;  Ins.  Co.,  ante,  §il(i. 


•   Hiiiic    .  Mulual,  etc.,  fns.  (:;o.,  «»rr,>5'2li;. 

"  Ti'iKsmm  ('.  Loiter,  Al.iguo  v.  AtUiii-on, 
nn/i".  §  'ill.. 

'  Itanianl  r.  KcIIi^lTi  nnte,  §'i-tr>. 

'"  Dodd  i\  Farlow,  'riiompsoii  v.  /kstitnn, 
ante,  §  .:i(i. 


-4i; 


Mm  >\: 


fX 


USAGKS    IN   CONFLICT   WITH   LEGAL    HULKS. 


4,sr) 


renewed,  was 
)Ueuble  to  tlio 
.,  rofen-iii;j;  to 
Y  terms,  or  to 
he  ai^rcement, 
law,  as  I  have 
)y  any  process 
^.     The  broker 
,o  do  otherwise 
lie  lirst  day  of 
,  in  a  ease  like 
entry  in  their 
was  followed, 
n  187G. 

in  DicJdmon  v. 
r  ii\  contraven- 
iiies  hav(!  be'Mi 
3uce  to  peculiar 
leculiar  or  local 
particidar  case. 
[•,  and  would  l)y 
cases  which  \vc 
jissilication,  and 
V.  Gmi.    They 
upon  which  rest 
for  the  purpose 
reconcile  them 
t!  previous  sec- 
ourts,  not  nioi'i! 
treatise,  be  sns- 
toH  Iheir  luing 
c  policy.   Thus, 
)\nmon  mass;' 
to  rc,;j;ard  cer- 
the  custom  of 
ract  of  rcinsur- 
'jeet  the  undls- 
(•ontra  ■; ;'  tlic 
:l  warranty  thai 
re  of  nicrclianl- 
:inia<ies  ari-^inu' 

iigoc  V.  Alkiii'i"'. 

iiipsoii  r.    Astiton, 


Tlic  True  Principles  Stated. 


from  liidden  defects,'  or  that  manufacturers  do  not  warrant  a,a;ainst  latent, 
defects,"  — all  of  wiiich,  in  individual  cases,  have  been  rejected,  —  are  different 
iu  kind,  but  not  in  decree,  from  the  multitude  of  similar  usajjes  and  customs  of 
trade  which,  as  already  seen  in  tlie  tliird  cliapler  of  tliis  work,  have  l)een  admit- 
ted in  evidence.  Other  customs  there  are  whicli  differ  essentially  from  tln^se, 
and  which  have  been  properly  looked  upon  by  tlie  courts  with  disfavor.  Am', 
here  we  lind  at  last  tlie  correct  test  by  which  to  try  the  admissibdily  of  a 
usa'jje  or  custom.  Ti\us,  the  custom  of  bankers  to  pay  but  one-iialf  the  aniouni 
of  a  note  wlien  only  half  of  it  was  presented  by  the  holder,  which  was  rejected 
In  Allen  \ .  State  Jluik;'  the  custom  of  brokers  not  to  reu;ard  tlu;  fact  that  :i 
bond  presented  to  them  for  purcliaso  was  overdue,  winch  was  lield  invalid  in 
Vermihje  v.  Adama  Express  Compan'j ;  *  tlie  custom  of  banks  not  to  rectify  mis- 
takes in  tlio  receipt  or  payment  of  money  unless  discovered  befon;  leaving  the 
office,  which  was  rejected  in  Gallatin  v.  Bnidfonl ;^  the  custom  of  carriers  that 
frcii^ht-money  reci;ived  an,,  not  earned  is  nevertheless  not  returned,  whicdi  \va- 
declared  void  in  Eincvj  v.  Dtinixir''  and  Frith  v.  Barker;''  the  custom  of  caplaiM>- 
of  vesH(;ls  to  retain  prolits  of  exchani^e  on  bills  drawn  on  the  owners,  which  wa> 
rejected  in  Diplock  v.  Blackburn  ;  "*  the  usa;>;c  of  insurance  agents  to  take  all  divi- 
dends declared  by  mutual  companies  in  lieu  of  other  compfusation  for  effect  iiiii- 
the  insurance,  which  was  held  invalid  in  Minnesota  Central.  Railrond  Compau'i  \ . 
Morgan;^  the  usa.Liie  of  l)rokers  to  act  for  both  parties  to  a  sale;  or  cNchanuv  ol 
property,  and  to  claim  compensation  from  both,  whicli  was  declared  vol  :  •■.! 
Raisin  v.  C/ar/u  "'an<l  Farnswnrth  v.  Ilammer^^  —  all  tliese  usages,  and  all  nui  !i  oi' 
similar  character  and  effect,  are  open  to  a  more  seiious  ol)jection  Mian  that  tliiy 
conflict  witii  an  "established  rule  of  law."  The  lirst,  as  said  in  Allen  v.  ,S/(if- 
Bank,'-  "  has  a  pernicious  tendency  to  facilitate  the  receipt  of  money  by  the  di^. 
honest  holders  of  half  notes,  and  tliereby  creates  or  multiplies  temptation^  to 
dishone.'ity."  Tlie  second  would  also  place  a  premium  upon  di-houesty  by  aliol 
ishin!^  all  the  guai'ds  which  the  law  has  thrown  around  the  title  of  a  hona  fub 
holder  of  negotial)l(!  paper.  The  third  and  fourth  are  so  unjust  on  their  lace 
that  they  could  hardly  be  defended  on  any  grounil,  while  the  fifth,  sixtli,  and 
seventh  violate  the  most  necessary  rules  which  the  law  has  established  for  the 
purpose  of  rcquirin:''  good  faith  in  the  dealings  of  an  agent  with  his  principal. 
All  of  them  violate  not  only  legal  rules,  but  tlie  principles  of  Justice  and  fair 
dealing. 

§  218.  The  Meaning  of  the  Rule  that  a  Usage  must  not  conflict  with  the 
Law.  -  In  the  light  of  this  princiiile,  the  nmaning  of  the  rule  that  a  usage  or 
custom  must  not  conflict  with  tlie  hivv  becomes  ch^ir,  and  tlie  rule  itself  easy  o( 
application.  The  language  of  the  judges  from  wliose  opinions  we  have  eUod  in 
§  22G  is  incorrc<;l,  because  it  is  uiKiualilied.  A  usage  or  custom,  a<  we  have 
already  shown,  is  not  invalid  simply  biiiause  it  is  different  iu  its  effect  from  tht; 


'  Oickinsoti  V.  Gay,  7  Allen,  '20. 

2  Whitmoi-c  I'.  8<)ii(li   BoHlon  Iron  Co.,  '2 
Allen,. W. 

3  1  Dov.  &  R.  Pl'i.  3. 
1  21  Wall.  l;W. 

?•  1  IJilil.  -20.). 
1  Dnlv,,»os. 


'  '>Jolins.  ;i27. 
.  4:t. 

"  52  I5arl).  '217. 

10  41  Mil.  l.")S,  ante,\\.AZ\. 

n   I  Alloii,4SM. 

'*  Supra. 


Km 


■r>n 


486 


WHEN    IN    CONFLICT    \V1  I'll    CONTUACTS,  ETC. 


The  Tnu-  Principles  Stated. 


general  principles  of  law  applicable  to  Ihc  particular  circumstances  in  its 
abscnci!.  IJut  if  it  conflicts  with  an  established  rule  of  public  policy  which  it  is 
not  to  tlio  guncral  interest  to  disturb;  if  its  effect  is  injurious  to  the  parties 
themselves  in  their  relations  to  each  other;  if,  in  short,  it  is  an  unjust,  oppressive, 
or  impolitic  usage,  tl-jn  it  will  not  be  recognized  in  courts  of  justice,  for  it  will 
lack  one  of  tlie  requisites  of  a  valid  custom,  viz.,  reasonablenesa.^ 

>  Ante,  Ohait.  I.,  $§  :t2,  4fi. 


LCTS,  ETC. 


INDEX. 


[The  references  iire  to  the  pages.] 


ACCO>rMODATION  USAGE,  OR  HABIT, 

mere  habit  of  acoonimodulion  or  indul-ronce  does  not  make  a  usage,  87 
creditor  may  indulge  debtor  in  one  case  without  binding  himself  as'  to  other 
dealings,  37. 

illustnitions  of  indulgences  which  do  not  amount  to  usages,  37,  38. 
habit  of  merchants  to  pay  debts  by  checks,  37. 
to  pay  workman  in  orders  for  goods,  38. 
not  to  pay  wages  punctually,  38. 
habit  to  call  on  workman  to  rectify  careless  job,  .38. 
habit  to  take  currency  in  payment,  38. 
favors  by  banks  to  depositors,  38. 

practice  of  mills  to  give  certificate  of  honorable  discharg3  to  operatives,  38 
owner  allowing  certain  persons  to  cut  timber  on  his  land,  38. 
act  of  railroad  in  paying  for  medical  attendance  of  employee,  38. 
but  a  practice  of  a  business  cannot  be  arbitrarily  changed  to  the  prejudice  of 

illustration  of  dealings  between  banker  and  customer,  39. 
ACQUIESCENCE, 

custom  must  bo  acquiesced  in,  C2,  63. 

consent  of  all  neeessary  to  validity  of  custom,  62. 
illustrations  of  usai';es  void  because  not  assented  to,  63 
dictum  in  Alabama  case  criticised,  62,  note. 
ADULTERY, 

in  prosecution  for,  custom  allowing  great  familiarity  between  the  sexes  rejected, 

but  in  proving  adaltory,  by  circumstantial  evidence,  social  habits  of  parties 
relevant,  61.  *^ 

AGENCY.    (See  Principal  and  AoK>fT.) 

AGENTS  AND  SERVANTS.    (Sec  P.^^Ks  am,  Bankiko;    Oommok  Cakhikrs; 

CoRPORATIo^^s;  Insukanck;  Master  and  Skuv ant;  Principal  Arn  Aqknt.) 
ANCIENT, 

»  common-law  custom  required  to  be,  26,  27. 

void  if  its  commencement  could  be  shown,  26. 

must  have  existed  from  time  "whereof  the  memory  of  man  runneth  not  to 
the  contrary,"  2ti. 

origin  and  Iiistory  of  this  limitation,  26,  27. 

(487) 


^  ■•1*1 


488 


INUKX. 


tn 


V   i- 


!    ! 


•n 


If  I 


1 .  i 


IM  i' 


I 


AiaClEST  —  Coniinned. 

not  nppliciiblo  to  the  Unitod  Stiitps  bocnusc  of  its  nowneaa,  27. 
except,  perhaps,  in  Virginia,  'J7. 
a  u?nge  of  trade,  if  established,  need  not  be  nncipnt,  2. 
piiiK  iple  establislied  by  Lord  MANSFiKr.n.  'JO. 
what  is  meant  by  "  established,"  2f>,  ;;0. 
t-ases  to  he  tested  by  circunistancos,  2^, 
illustration.^,  .lO. 

ANTIQUITY.     {See  ANcitsr.) 

ARCHITECT, 

usai;o  that  employment  of,  gives  him  siiperintendcnee  of  building,  277. 

the  authorized  ofRcors  of  a  inuiiicipality  liaving  decided  to  erect  a  public  builn- 
ing,  oflered  prizes  for  the  be-t  plans,  with  costs,  etc.  T.,  an  architect,  was 
awarded  one  of  the  prizes,  with  noli'o  that  "  the  award  should  nut  bo  consid- 
ered as  indicating  a  prei'erojicy  fur  cillicr  of  said  plans,  as  to  which  should  be 
fiiuilly  adopted,  from  which  the  stiid  building  should  be  erected,"  and  the 
amount  of  the  prize  (.$1,000)  was  paid  to  him.  Sub-^equently,  by  resolution, 
the  officers  adopted  T.'.s  plan,  subject  to  conditions.  Jlcltl,  that  this  resolution 
was  a  voluntary  act  of  the  oflicer^,  and  did  not  amount  to  a  contract  betwi cis 
them  and  T.  Held,  fartlur,  tiiat  in  an  action  by  T.  against  the  officers,  evi- 
dence of  a  usage  and  custom  among  iirchitccts  that  in  the  absence  of  a  special 
contract  the  superintendence  of  the  coii>truction  of  a  building  belongs  to  the 
architect  whose  plans  are  adopted,  and  that  where  prizes  for  plans  are  oft'crod, 
the  plans  of  the  successful  competitors  belong  to  them,  and  if  .subsequently 
adopted  as  the  plans  to  build  by,  they  are  always  paid  for  in  addition  to  the 
prize  itself,  wii3  properly  excluded.      Tilley  v.  Cihj  of  ('/ticngo,  liSii. 

ATTORNEY, 

cu.stoni  of  attorney  in  giving  direction.s  as  to  writs,  79. 

habits  of  other  attorneys  in  same  place  irrelevant,  80. 

attorney  may  charge  term-fee  by  usage,  303. 

or  retainers,  30.'>. 

or  may  be  personally  liable  for  sheriff's  fees,  303. 
usage  to  explain  agreement  between  attorney  and  client,  38G. 

AUCTIONEERS, 

usage  of,  as  to  fees  for  services,  45. 
usages  on  sales  by  auction,  olO,  311. 

AUTHORS.    (See  PuBLLSHEKs  AtiD  Authors.) 


BAILMENTS.    (5ee  Common  C,\.rrikrs;  Inxkeepkus;  NEOtroEiVCE.) 

RANKS  AND   BANKING, 

person  must  know  usages  of  banks  to  be  bound  by  them,  when,  53. 
long-established  usages  of  banks  binding  on  customers  whether  kmv-vn  or  not,  53, 
favor.'}  by  bank  to  depositor  do  not  make  a  usage.  38. 

but  cannot  be  arbitrarily  changed  to  his  prejudice,  39. 
payment  of  loss  by  bank  in  an  unusual  case,  41. 
particular  instances  of  dealings  in  one  or  two  banks,  41. 

a  particular  banking-usage  muMLupply  to  a  place,  not  to  a  partieidar  bank,  41. 
cases  which  hold  that  in  order^  affect  a  person  with  the  usage  of  a  particuh^r 
bank  he  must  be  shown  to  have  known  it,  criticised,  53. 


INDEX. 


489 


Inii-vn  or  not,  53. 


BANKS  A^D  RANKING  — Con^nwerf. 

unrensonikblo  usaLjcs  of  banks  and  bnnkfrs,  70. 

to  honor  occnsioniil  overdrnfts  of  ciisloinor:;  in  good  stHndin:,',  70. 
not  to  rectifj'  mistiikos  disoovorpd  aftor  person  leaves  I'link.  70. 
custom  to  require  depositor  to  produce  pass-book  good,  70. 
custom  of  banking-hours,  00. 
other  banking  customs  judicially  noticed.  00. 
particular  customs  of  banks  must  bo  proved,  06. 

usages  of  banks,  and  as  affecting  negnlinblc  uiul  n'signnble  paper,  IIG,  201-214. 
powers  of  bank  officers  as  alfecled  by  usng",  '20o. 
power  to  certify  checks,  "O'l. 

proper  officer  to  receive  payments  or  deposits,  120"). 
transfer  of  shares  to  casliicr  vests  legal  lille  in  bank.  'JOO. 
a  custom  on  the  part  of  all  the  banks  in  a  particular  place  to  demand  pay- 
ment and  give  notice  to  inilorscrs  of  negotiable  i)apei'  on  the  fourth  day 
I  of  grace  is  binding  on  an  indorscr  if  known  to  hini.     lirnncr  v.  Bank  of 

Colttmbla,  llii. 
usages  of  banks  as  to  demand  and  notice  Lrovcrn,  20G,  207. 
'  but  some  donnuid  alwiiys  necessary.  207. 

discordant  decisiims,  20S. 
days  of  grace,  how  affected  by  usage,  208. 
I  usage;  tliat  ])uper  in  fonn  of  note  is  entitled  to  no  grace,  inadmis- 

;  sible,  208. 

duties  of  bank  as  cclkcting  agent,  209. 

may  be  delegatixl  to  notary'  by  usage,  20'.). 

conflicting  decisions,  20',). 
may  tiike  check  in  payment  by  us.'igc,  210. 
payment  by  bank  must  be  in  good  mone^,  210. 
inconsistent  usages  invalid,  210. 
payment  of  forged  check  by  bank  is  at  its  peril,  211. 
j  how  far  this  rule  allected  by  us:ige,  211,  212. 

right  of  lioldcrs  of  onc-hall'  of  bank-note,  212. 

us:i^-(i  of  bank  not  to  pay  any  of  its  bills  volun(.irily  out  in  two  invalid, 
'  212. 

so  of  custom  to  pay  only  iiulf  the  amount  on  the  presentation  of  each 
hair,  2i;!. 
banlc  bona  fide  holder  of  check  by  iis:igo,  213. 
<  purchaser  of  past-duo  negotiable  paper  takes  it  subject  to  equities,  214. 

usage  in  opposiiion  to  this  rule  void,  211. 
roto  maybe  negotiable  by  custom  of  a  particular  locdity,  214. 

bank  liable  on  certificate  of  deposit  signed  oidy  by  president,  245. 
on  contract  for  Forvices,  215. 
on  bili  of  exchange  indorsed  by  cashier,  24.5. 
requisite  notice  of  transfer  of  shares  waived  by  usa:','!,  246. 
80  of  consent  of  directors  to  transfer,  240. 
>  bankers  and  brokers;  bills  and  notes;  customs  in  contradiction  to  contract 

'  inadmissible,  445,  446,  4G2. 

,  statute  allowing  days  of  grace  on  note,  400. 

;  contrary  usage  void,  400. 

'  banks  and  batddng  —  usages  against  Icg.'d  rule-  aliiiitied,  407. 

I  usages  against  legal  rules  rejected,  4t)7,  408. 


'.^Jllll 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


// 


^  .>% 


i. 


z 


1.0 


I.I 


■AS  128    |2.5 

iM    111112.0 


12.2 


L2|  i  u  ill 


'/ 


Photographic 

Sciences 

Corporation 


aa  WIST  MAIN  STRIET 

WEBSTER,  N.Y.  14910 

(716)  872-4503 


\ 


iV 


^ 


r<\^ 


\ 


:\ 


cS"^ 


'4^ 


c 


U.A 


4i^0 


INUEX. 


RILL  OF   LADING.     (Net- Common  CAKaM;K>.) 

ItOOKS  OP  ACCOUNT. 

party's  practice  may  ozplain  abbreviations  and  symbols  in,  8L 
entries  made  in  usual  course  of  business,  82-84. 
evidence  after  party's  death,  82. 

if  they  are  party's  books  of  account  kept  in  regular  course,  83. 
8hin<;1e  containintr  minutes  of  lumber  bowed  admissible,  83. 
also  notched  stick  und  wooden  tallies,  83. 
memoranda  of  sawyers  on  boards,  83. 
scraps  of  paper,  84. 
tabular  forms,  84. 
single  sale,  though  of  more  than  one  article,  does  not  constitute  a  course  of 
business,  84. 

BROKERS.    (See  Principal  and  Aqknt.) 

BUNDLING, 

custom  of  "bundling"  described  by  Washington  Irving,  59. 
rejected  in  actions  for  seduction  in  Fenusylvaiiia  and  New  York,  9,  59« 

'      UDEN   OP   PROOF, 

1  party  setting  up  usage,  97. 


OErTAINTY, 

common-law  customs  must  be  "certain,"  80,  32. 
principle  explained  by  Mr.  Urownk,  31. 
illustrations  of  uncertain  and  void  customs,  81. 

custom  that  land  shall  descend  to  the  most  worthy  of  the  owner's  blood 

3L 
custom    for  poor  and  indigent    householders  to  cut   and  carry  away 

rotten  boughs  and  branches  in  a  chase,  31. 
custom  to  pay  sometimes   two  pence  and    sometimes  three   pence  in 
lieu  of  tithes,  31. 

But  id  cerium,  est,  quod  certum  redi  potest,  31. 
custom  for  tenants  of  collieries  to  throw  earth,  stone,  coals,  etc.,  nsor 

to  certain  coal-pits,  81. 
custom  to  dig  turf  for  making  or  repairing  grass-plots  as  occasion  re- 
quires, 31. 
custom  for  occupiers  of  brick-kilns  to  carry  away  as  much  clay  as  was  at 
any  time  required  by  tbeiii  to  muke  bricks,  32. 
the  usage  of  u  parlicular  trade  must  be  certain  and  uniform  to  make  it  binding 
on  tnitisactions  in  tluit  trade.     Wood  v.  Wood,  3. 
illustrations  of  usages  void  for  uncertainty,  33,  36. 

usai'e  in  clotli  trade  that  seller  could  demand  goods  back  unless  notified 

by  buyer  within  three  days,  a  week,  or  a  month,  33. 
usage  of  veterinary  surgeons  to  charge  for  attendance  as  well  as  medi- 
cines when  there  is  not  much  medicine  required,  33. 
usiifjjc  of  merchants  todelivt-r  good  4  sold  for  cash  without  demanding  the 

ciisli  when  seller  considers  tlie  purchaser  good,  33. 
custom  among  wholesale  merchants  to  allow  salesmen  for  time  tost  by 

sickness,  38. 
U6iige  among  brokers  that  margins  put  up  to  cover  advance  must  be 
"reasonable,"  83. 


IND£X. 


491 


ite  a  courM  of 


mh,  etc.,  n«ar 


la  oeeasum  re- 


CERTALNTY—  Continued. 

custom  among  commission  merchants,  on  sales  for  cash,  to  wait  two. 

tlircc,  or  four  days  for  the  moni-y,  33. 
custom  among  commission  merchants  in   Indianapolis  that  flour  of  » 

grade  not  suitable  for  sale  there  is  forwarded  to  New  York,  33. 
custom  of  hotel-keepers  as  to  deposit  of  money  by  guests  in  safe,  34. 
custom  of  merchants  as  to  what  is  meant  by  "borrowed  money," 34. 
custom  of  surveyors  in  nudiing  measurements,  35. 

usage  of  captains  of  "tv^ainboats  to  give  premium  note  for  insurance,  35. 
usage  which  .nis  no  Hj  .it  to  its  extent  is  had,  35. 

CHARIVARI, 

custom  of  the,  61,  62. 

cannot  excuse  murder  or  riot,  62. 

CIIECK.    (See  Banks  and  Bankinq.) 

CLASSIFICATION, 

of  the  cases  in  this  work,  368. 

COMMON  CARRIERS, 

usage  of  one  railroad  company,  effect  of,  41. 

a  few  instAnces  of  transshippinc;  goods  or  stopping  at  a  particular  port  does  not 

establish  a  usage  in  the  shipping  trade,  42. 
boat  putting  into  port  sometimes,  but  not  usually,  43. 
unreasonable  usages  of  common  carriers,  71-73. 

for  wharfingers  to  act  as  agents  in  accepting,  on  behalf  of  consignees,  goodi 
arriving  at  wharves,  71. 

for  consignee  of  a  vessel,  also  owner  of  cargo,  to  charge  commission  on 
freight  paid  by  himself  to  captain,  71. 

that  an  intermediate  carrier,  who  received  property  subject  to  charges,  may 
deduct  from  freight  earned  by  prior  carrier  value  of  deficiency  between 
quantity  delivered  and  that  stated  in  bill  of  lading,  and  that  prior  carrier 
shall  not  be  allowed  to  show  that  error  occurred  in  stating  amount  in  bill 
of  lading,  71. 

that  to  constitute  delivery  of  goods  by  carrier  by  water,  receipt  must  be 
given  to  the  carrier  by  consignee  or  agent,  71. 

that  freight  paid  in  advance  may  not  be  recovered  back,  though  not  earned, 
71. 

that  notice  published  in  three  newspapers  in  city,  of  time  and  place  of  land- 
ing goods  by  steamboat,  is  such  a  notice  as  places  them  at  risk  of  con- 
signee, 71. 

among  owners  of  tow-boats  that  first  coming  alongside  of  a  ship,  on  a  signal 
for  steam,  has  absolute  towing-contract,  71. 

requiring  those  in  legal  use  of  wat>,rs  as  a  highway  to  yield  to  others  who 
are  using  them  for  an  unlawful  purpose,  71. 

that  contract  made  to  furnish  and  carry  coal  to  a  certain  port  for  sale  may  be 
thrown  up  by  either  party,  at  his  cunvetiience,  no  damage  to  be  claimed 
from  either,  71. 

of  railroad  company  requiring  claims  for  damages  to  bo  made  when  goods 
•re  delivered,  or  booii  after,  72. 

that  before  consignee  can  obtain  his  wheat  from  company's  bins  he  mutt 
•ign  receipt  for  quantity,  72. 


492 


INDKX. 


COMMON  CARUIEKS  —  Continued. 

thiit  railroad  will  not  bo  responsible  for  ccnUMits  of  cars  of  which  their  ser- 
vants have  the  keys,  72. 
that  pnssensors  cannot  tsiko  tlioir  b:ii;gage  to  state-rooms,  72. 
to  bind  floods  on  banks  of  river,  72. 
to  deliver  cari^o  at  a  distance  from  consignee's  wharf,  72. 
rights  and  liabilitios  of,  ns  afl'cctod  by  custom,  I'Jo,  "214. 
definition  of  comnion  carrier  qualified  by  usaj^o,  'J14. 
carrier  liable  as  such  for  all  property  which  by  custom  he  undertakes  ^o 

carry,  215. 
not  liable  till  goods  are  "delivered  "  to  him,  215. 

what  a  good  delivery  (hsterinini'd  by  UMige,  215-217. 
usage  to  deliver  to  mate,  21(i. 
to  lei'.ve  goods  on  wharf,  21'!. 
to  deliver  to  driver  of  cuaeh,  21(). 

delivery  of  b»j;gai;e  at  depot  without  notice  to  eeinpany  goorl  by 
custom,  217. 
UFaT;c  must  be  strictly  followed,  217,  218, 
complete  delivery  not  alfected  by  a  contrary  usai^e,  218-220. 

actual  dolivery  of  goods  to  railroad  not  allected  by  us.ige  to  tirst, 

sign  bills  of  lading,  218. 
so  of  usage  not  to  consider  baggage  as  delivered  until  "checked," 
220. 
usage  cannot  prevail  against  express  dire<'tions,  228,  229. 
delivery  not  good  on  prohibited  days,  221). 

this  rule,  how  allected  by  usaije,  220,  2:50. 
if  by  usage  consignee  provide  appliances  for  deli vcrj',  carrier  not  lliible  (oi 

injuries  received  therein,  231. 
usage  may  require  a  personal  delivery,  231, 
a  complete  delivery  not  affected  by  a  different  usage,  231. 
ex])ress  companies  required  by  law  to  make  personal  delivery,  231. 
u.-age  not  to  make  personal  delivery  rejected,  2:!2. 
but  allowed  in  some  cases,  2:i3. 

these  latter  cases  criticised,  233-235. 
expressman  must  notify-  consit^nor  of  consignee's  refusal  to  accept  guoil'j,  235. 

contrary  usage  allowed,  23"). 
liabilities  of  connecting  carriers,  235,  230. 
carrier's  charg(!S  in  absence  of  agreement  fixed  by  usage,  230. 
freight  not  earned  may  be  recovered  back,  237. 
contrary  usages  void,  237,  2;i8. 
liability  tor  property  while  in  transit,  221. 

custom  that  shipper  may  control  pr(>i)erty  excuses  c  irricr,  221. 
conflicting  decisions,  221. 
carrier  by  water  must  store  goods  on  d(K'l<,  221. 
this  rule  altered  by  u>age;  illustrations.  221. 

usage  as  affecting  liability  of  carrier  for  goods  injured  by  contact  with 
other  goods,  222. 
liability  of  carrier  continues  until  he  has  made  a  delivery  of  the  property, 
222. 

the  limits  of  tiiis  rule  obtained  by  evidence  of  usage,  222-224. 
formerly  personal  delivery  was  required  of  carrier,  224. 
but  usages  of  trade  have  moditiod  this,  225. 


Wi 


INDEX. 


498 


vhich  their  scr- 


;  undertakoa  to 


mpivny  j^ood  by 


ntil  "dicck.d," 


T  not  liuhli'  lor 


;cept  good'^,  235, 


COMMON  CARRIERS—  Confinued. 

ctiirier  required  by  law  to  give  notice  of  arrival  of  goods,  225,  22'). 
tills  rulo  altered  bj'  usiigi-,  2-0. 

where  the  defendants,  who  were  common  carriers  on  Lake  Chnm- 
plain,  were  intrusted  with  a  packiiijc  of  b;ink-bill8  to  carry  t'rntn 
B.  to  P.,  directed  to  the  cashier  of  the  bank  at  P.,  and  they  ddiv- 
ereil  tlietn  to  the  wliartiM<^or  of  the  wharf  nt  P.,  iit  which  phici' 
their  boat  touched,  from  whom  the  jiackiigo  was  stolen,  ifi  an 
action  by  the  consignors  fur  the  loss:  held,  oi\  the  tirst  appeal, 
thiit  it  was  competent  for  the  defendants  t<>  prove  that  it  was  their 
uniform  usage,  well  known  to  the  plainlitVs,  to  deliver  such  puck- 
ages  of  money,  when  intrusted  to  them,  to  the  wharlin^cr  hiiving 
cluir;;;e  of  the  wharf  where  the  boat  landed,  without  giving  any 
notice  to  the  ii.^i-ignee.  Held,  fitrthcr,  on  a  second  appeal,  that 
it  was  not  essential  to  show  that  the  plaintill's  had  actuid  knowl- 
ed;;e  of  this  usage.  Farmers',  etc..  Hank  v.  Chainplain  Trannp. 
Co.  ]:;:!. 
other  illustrations,  227. 

cases  where  similar  ui^age  as  to  delivery  did  not  prevail,  227,  228. 
carrier  has  no  jiower  to  s(?ll  goods  in  his  charge,  except  in  emergency,  238. 

contrary  rule  recogni/.ed,  2."i8. 
carrier  iuis  only  a  particular  lien  on  goods  for  his  unpaid  i  liarges,  238. 

but  general  lien  may  hi!  given  him  by  >  u-tun,  2:18-210. 
carrier  giving  r-redit  for  cliargcs  loses  his  lien,  211. 

init  usage  may  allow  this,  212. 
bills  of  lading  construed  by  usage,  242. 
usage  must  be  uniform,  212. 

carriers'  liability  canimL  be  restricted  by  usage,  242. 
Btatulory  exemptions  to  carriers'  liability  cannot  be  waived  by  usage,  243. 
u-age  adinissil)Ie  to  explain  terms  in  bills  of  lading  and  oilier  maiiiim(!  eoii- 
traets,  408-4 1 1. 
custom  which  precludes  carrier  from  denying  reccdpt  of  amount  stated 

in  bill  of  lading  bad,  408. 
words  and  phrases  ex|ilaini'd  by  usage,  108  411, 
(Sec  nUr,  Words  and  Phuasks.) 
coiitracts  between  carrier  and  customer  cannot  bo  contradicted  by  usage, 

43r)-4:!8. 
statute  prohibiting  carrier  from  limiting  common-law  liability  cannot  be 

altered  by  usage,  4.'')0. 
common  carriers  —  usages  against  legal  rules  admitted,  4')8. 
usages  against  legal  rules  rejected,  4(i'.). 

COMMON-LAW  CUSTOMS.    {See  Custom  am>  Usaub;    Gknxhal   JuaTo.M.s- 
I'AiiTicuLAR  Customs.) 


COMiniLSORY, 

<  ustom-  must  be,  oO. 

explanation  of  this  rule,  3B. 

custom  to  contribute  at  one's  pleasure,  void,  88. 

CONFLICT   OF  LAWS, 

use^'es  of  place  where  contract  is  drawn  govern  in  its  construction,  110. 
wliero  one  party  a  foreigner,  111. 


494 


INDEX. 


CONFLICT  OF  h AWS  —  Continued. 

when  contract  by  correspondence,  111. 

other  CHSO!',  111. 

contnirt  made  in  B.  with  manufiicturers  in  P..  usncjps  of  mnrkot  in  P.  govern, 

111,112. 
customary  covenants  in  deed  governed  by  lex  rei.  .•iiUc,  112. 

CONSISTKNT, 

customs  must  be,  36. 

explanation  of  the  rule,  36. 

CONSTRUCTION    OF    CUSTOMS    AND    USACKS,    {See    also   Words    and 

PHRASKS.) 

construction  of  common-law  customs,  107-110. 
customs  construed  strictly,  107,  lOd. 

illustrations  of  this  rule,  108. 
usaj^es  of  trade  construed  strictly,  lOS. 

usMa;e  to  deliver  i^oods  to  mate  will  not  excuse  delivery  to  dcck-hanf?, 

108. 
usM2;e  of  passenger  confined  strictly  to  passengers,  108. 
of  carrier  to  notify  consignee  at  store,  108. 
of  bunk  teller  to  issue  cer    loates  of  deposit  does  not  include  certifying 

checks,  108. 
other  instances,  108,  109. 
usage  of  railroad  to  allow  employees  to  ride  frro  on  its  trains  not  ox. 

tended  to  paying  their  passage  on  other  roads,  109. 
usages  of  railroads  strictly  construed,  109. 
usages  cannot  act  retrospectively,  109. 
usages  disregarded  in  courts  of  law  not  regarded  in  chancery,  109. 

(H)NTINUED, 

customs  must  bo,  30. 

interruption  of  custom  avoids  it,  37. 

if  interruption  of  usage,  and  not  of  right,  37. 
usage  proved  lo  exist  at  a  period  long  before  the  transaction  to  be  affected,  and 

not  since,  inadmissible,  87. 
c'istom  of  charging  interest,  dilferent  with  different  city  officers,  invalid,  37. 
witness's  knowledge  b^ing  not  later  than  a  year  before  his  introduction,  usage 

inadm'.-sible,  37. 
mere  habit  of  ac<  ommodntion  or  indulgence  does  not  make  a  usage,  37. 
creditor  may  inculge  debtor  in  one  case  without  binding  himself  as  to  other 

dealings,  37. 
Illustration  of  indulgoneea  which  do  not  amount  to  usages,  37,  38. 

habit  of  merchants  to  pay  debts  by  cheeks,  37. 

to  pay  worUtien  in  orders  for  goods,  38. 

not  to  pay  w  iges  punctually,  38. 

habit  to  call  on  workman  to  rectify  careless  job,  88. 

habit  to  take  currency  in  payment,  38. 

favors  by  banks  to  depositors,  38. 

prnctice  of  mills  to  give  certitlcate  of  honorable  discharge  to  operntivcs,  88. 

owner  allowing  certain  persons  to  cut  timber  on  his  l.md,  ;}8. 

act  of  railroad  in  paying  for  niodicui  attendance  of  employee,  88. 


INIJKX. 


49.') 


pt  in  P.  govern, 


Words    and 


to  dcok-hand, 


:lude  certifying 


I  trains  not  ex. 


>e  affected,  and 


CONTINUED—  Continual. 

but  H  pnictice  of  a  business  cannot  be  arbitrarily  chnnijed  to  the  p.ajudico  of 
other?,  :!S. 

iliu.strution  of  deuliiii^s  betwccti  banker  rind  onstomer,  39. 

CONTRACT,    (.S>e  also   Common    Carrikrs;    Insiiuavck     Law;   Mastek  ani> 
Skkvant;  Mkciiamcs  a.no  Woukmkx;  Piiingipai,  and  Aoknt.) 
custom  does  not  oblit;iito  mode  of  exetMititi'^  cdnlr.i.l,  H2. 

oral  insurance  Cdnlriii't  c;ood,  th'>n_i;li  usually  in  writuii^,  82. 
parol  evidence  inudniissiblo  to  vary  a  written  contract,  3t)4. 
but  it  may  explain  an  anibii^uity,  •{!>4. 
or  show  a  collatenil  as^reenicui.  'AA. 
or  show  forgery,  or  fraud,  or  durcs-,  8i!5. 
oilier  exceptions,  Jiii'). 
admi-sihility  of  usai;e  to  afl'ccl  written  contracts.  SG5. 
views  of  the  text-writers  and  judj^cs,  ;iii>. 
u,-ai;e  may  explain  ti'chniciil  or  luiintciiinihlc  li-nns,  307. 
may  exphiiii  even  unaniLiiruous  words  if  us.d  in  a  p  .ilmr  mode,  307. 
in  a  lease  of  a  nihliit-wanen,  tho  lessee  coveiiiited  tliat  at  the  expiration  of 
the  term  he  would  leave  on  the  warren  ten  tliiuiand  rabbits,  tlic!  lessor 
payinj^  for  them  .C  0  per  thousand.     In  an  uciioi;  by  trie  U's.see  against  the 
lessor  for  refusing  to  pay  for  the  ralibils  left  at  the  'Mid  of  tho  term:  held, 
that  parol   evidence  was  admi-slhlii  to  show  that  by  ibe  custom  of  the 
comitry  where  the  least!  wa-.  made,  the  wo-1   "thoiisunil,"  lis  applied  to 
rabbits,  denoted  fweliic  hun  I'rcd.     Sinifh  v.  ll'/7.so)<,  ;'-">"i. 
clas>i(lcuLion  of  the  cii<es,  'MS. 

usaije  adinissil)](>  to  add  imexpi'es<od  terms  tn  writteii  contra  'ts,  .'Ki'J. 
inci.'u'nts  annexeil  to  contracts  generally,  liii'.t. 

illustrations,  .'J70. 
incidents  added  by  u-ngc  rnnnot  establ!«h  a  contract.  370. 

in  the  absence  of  a  contract,  evldivue  of  u-^age  arv!  ci^t.im  is  irrelevant- 
The  authorized  oflleers  of  a  niiiiiieipalit v  liaviiL,  detnded  to  erect  a 
public  building,  otlercd  prizes  for  the  best  pKtns.  with  costs,  etc.  T., 
an  architect,  was  awarded  one  of  the  pri/.es,  will  notice  that  "tho 
award  should  not  be  considered  tis  indicating  a  preference  for  either  of 
said  )>lans,  as  to  which  should  lie  fin'tlly  ado[)te(|.  t'rom  which  the  said 
building  slionld  be  erected,"  and  tiie  amount  of  the  firize  ($1,000)  was 
paid  to  him.  Subse(iU(!ntly,  by  resolution,  the  oiiieer-.  adopted  T.'s 
plan,  subject  to  Conditions.  Hf/'  'it  this  resolution  wa-- a  voluntaiy 
act  of  the  ollicers,  and  did  not  an.  ...t  to  a  contract  between  them  and 
T.  Held,  furfhcr,  that  in  an  action  by  T.  against  the  otiicers,  evidence 
of  a  usage  and  custom  among  archiiects  tliat  in  the  absence  of  a  spe- 
cial contract  tho  superintendence  ot'  the  construction  of  a  building 
belongs  to  the  architect  who<e  phuis  are  adopted,  and  that  where  prizes 
for  plans  arc  offered  t  •  plans  of  the  suceessliil  competitors  belong 
to  them,  and  if  subsequently  adopted  as  the  plans  to  build  by,  they 
are  always  paid  Ibr  in  addition  to  the  prize  itself,  was  properly  ex- 
cluded. Tillei/  V.  Citi/  of  C'/nc'i;)o,  M"}'!. 
particB  differing  as  to  usage,  does  not  destroy  contract,  371. 
usage  not  admissible  to  supply  disputed  terms,  371. 
UBUge  inadmissible  when  repugrnint  to  express  contract,  434. 
contradictory  expressions  by  the  courts,  434,  i':'.5. 


fil 


4!){i 


INDEX. 


CONTRACTS  —  Continued. 

tli(i  true  rule  stated,  4:i5. 

coi)trn<t8  bc'two'.'n  carrier  and  customor.  i"6. 

<  luinot  be  contriulictfid  by  fviduiict'  of  iissigo,  435-438. 
c^)Iltra<■t^*  of  itisiiranrp,  488-441. 

cannot  bo  contradicted  by  usa^c,  48H_411. 

in  an  Mclion  on  a  policy  of  ifKiiraiice  on  n  sbip,  her  luckle,  nppnrol,  boai, 
and  otber  furniture,  evidence  of  a  usii^e  tliat  lioats  sluni;  on  the  out- 
side of  the  ship,  on  the  quarter,  are  not  protected,  is  inadmissible,  a3 
coritriidictinEf  the  express  terms  of  the  contract.  lUackftt  v.  Hoyal 
Exchnn(je  Asmir.  Co.  413. 
agreements  between  landlord  and  tenant,  441. 

contract  for  time  certain  cannot  be  evaded  by  custom,  441. 

tenuhl  ajxreeinj;  to  give  bindlord  wuNgoirjq;  cnip  cannot  claim  it  by  ctis 

torn,  441. 
other  instances,  411. 
contracts  of  liirinu;,  111. 

if  express,  cannot  be  altered  by  contradictor}'  customs,  441. 
conliai'ts  lor  work  and  labor,  411-  14:!.  if^l. 

A.  agreed  to  make  IJ.  a  "salist'actory  "  suit  of  clothes.  A.  afterwards  de- 
livered the  cUitlies  to  IJ.,  but  IJ.  returned  them  to  A.  witli  a  notice  that 
tlicy  did  not  (it,  and  were  unsatistaclory.  In  a  suit  by  A.  a^nitist  B. 
lor  the  price:  /i^ld,  tliat  evidence  that  a  custom  existed  among  tailors 
of  having;  ijarnu'nts  tried  on  alter  they  wi-re  linished,  and  tlien  making 
any  alleralions  thatuii;:ht  be  necessary  to  make  then)  lit,  was  inadmis- 
sible, because  it  contradicted  the  terms  of  an  express  contract.  Brown 
V.  Foster,  417. 
other  cases,  441-41:?. 
prihripal  and  agent,  41 1,  44}. 

express  contracts  between,  cannot  bo  contradicted  by  Ui^age,  444,  445. 
bankers  and  brokers;  bills  and  notes,  41'>. 

i'ustoms  in  contradiction  to  contract  inadmis.^ible,  4iri,  1 10,  A')2. 
coninicts  of  sale,  447. 

if  not  ambiguous,  cannot  be  altered  by  usage,  41S,  4')2. 
criiicism  of  some  cases,  44^^. 
exp:'  -s  agreement  between  innkeeper  and  guest  cannot  bo  altered  by  custoin» 
403. 

CONTIIACTS  OP  !^ALE.    {See  Vkndor  and  PtiRcriASKR.) 

CONTRACTS  OF  SKUVICE.    (.S'ee  M asiki;  and  Skrv.wt.) 

CONTRACTS  FOR  L.VROR  AND  .MATERIALS.     (.S'ee  M.i;':irAMCS  and  Wouk- 
Mi;x.) 

CONTRIUUTORY  NF.CJLKJENCE.     {S.-c  Nkqt.ioenck.) 

CORPORATIONS,    (.See  oiso  Ranks  and  Ranki.vq;  Common  Carriers.) 
customs  of  servants  of  corporations,  HO-o^ 

usage  of  servants  of  corporation  not  i;nown  to  ofliiris  not  binding  on  it,  50. 
but  tludr  knowledge  ma}"  be  imj)lied  from  the  notoriety  of  the  U8;ige,  50. 
custom  of  conductors  on  railroatls  to  pay  out  small  banlc-notes,  in  viola- 
tion of  statute,  51. 
corporations,  their  powers  and  liabilities  us  ailucted  by  usage,  116,  243-248. 


"■ 


INDKX. 


49; 


liiim  it  by  cua 


Irod  by  custom* 


b    A.ND  WoilK- 


OOUPO  RATIONS  —  Continued. 

requisite  of  corporate  seiil  filtered  by  nsnije,  213. 
powers  of  officers  of  corporations  atfected  by  iisnge.  244,  245. 
a  corporation  may  by  usai^e  and  practico  retuicr   itself  liable  on  ci>ntraots 
executed  in  a  ilitforent  mode  from  that  authorized  in  its  charter.     llurkUji 
V.  D<;rhv  Fin/ling  Co.  14'). 

insurance  compHn\'  liable  on  policy  executed  in  mode  ditferonl  frD.i. 
that  prescribed  by  charter,  245. 

on  agreement  siijned  by  agent,  245,  240. 

on  parol  contract,  24.'). 

and  on  bill  of  exchange,  24-5. 

bank,  on  cortiticate  of  deprsit  signed  only  by  president,  24'. 

on  contract  for  services,  24.">. 

a  bill  of  exchange  indorsed  by  cashiir,  245. 

requisite  notice  of  transfer  of  shares  waivvd  by  usage,  24*5. 

so  of  consent  of  directors  to  transfer,  2l»f. 
corporation  has  no  lien  on  shares  of  stockholder  for  indebtedness  to  it,  24*;. 

but  may  by  usage,  247. 
transfer  of  certiticutes  by  usage,  248. 

notice  to  sti>ckholders  published  in  newspaper  valid  by  custuin,  248. 
corporations  —  usages  against  legal  rules  admitted,  4(i9. 

COURSE  OF  BUSINESS.    {SeeUwAV.) 

CRIMES, 

Ci'ston'  cannot  excuse,  <V2. 

evidence  of  usage  on  prosecution  for  disturbing  worship,  333. 

for  carrying  concealed  weapons,  :!;;;!. 
statute  declaring  violent  and  tumultuous  acts  riot,  4t>0. 

custom  of  the  country  void,  4ti0. 
statute  prohibiting  work  on  Sunday,  4C0. 

custom  of  barbers  to  woik  on  that  day  void.  400. 

CUSTOM  AND  USAGE, 

detinition  of  custom,  15.  ■ 

dirterent  kinds  of  common-law  customs,  T">. 

general  customs  detined,  15. 

are  the  common  law,  10. 

founded  on  act  of  i'arliamenl,  10. 

particuhir  customs  delined,  15,  10. 

contirmed  to  particular  districts  bv  statute,  ]•? 

instances  of  particular  customs,  17. 

gavelkind  in  Kent,  17. 

borough-English,  17. 

customs  of  manors,  17. 

customs  of  London,  17. 

law  of  the  river,  17. 

law  of  the  road,  17. 

analogy  between  customs  and  language,  17. 

views  of  Mr.  Browne,  17-19. 

.Mr.  Disraeli  on  the  pri)priety  of  legalizing  custoniF,  IP. 

landlord  and  tenant  customs  in  Ireland,  18. 

customs  of  merchants  defined,  18. 

3? 


i 


498 


INUKX. 


CUSTOM  AND   Ui^AGK— Continued. 

adopted  by  tho  law-mcrdiiint,  tbey  become  a  part  of  the  common  law,  20. 
pnictice  of  the   old  judges,  in   their  estiiblishmont,   to  confer   with   mtr- 

ciiiints  as  to  their  existence  and  effect,  20. 
general  custom  of  merchants  judicially  recognized  by  tho  courts,  "JO. 
local  customs  of  trade  defined,  20. 
dislike  of  tho  judges  to  extend  the  office  of  a  usage,  20-24. 

liord  Kr.DON'.s  opinion  that  Iho^'  had  been  ext<'tided  far  enough,  21. 
Similar  views  in  Hutton  v.  Warren,  in  the  case  of  instruments  under  seal,  Jl. 
Lord  Denman'b  expression  on  the  subject  in  Freeman  v.  Loder,  21. 
simiiii.-  views  expressed  in  America  by  Mr.  Justice  Story,  in  The  Reeside,  'Jl. 
and  iti  a  subsequent  case  by  tlie  same  judge,  21. 

Chi(;f  Justice  Tilqhman's  himent  over  tiieir  introduction  into  the  hiw,  22. 
Chief  Justice  Gibson's  disliiie  to  their  admission,  22. 
similar  opinion  of  Perkins,  J.,  in  Cox  v.  O'Rl'  y,  22. 
of  Stuart,  J.,  in  another  In<liana  case,  22. 
of  CooLKY,  C  J.,  in  Strong  v.  Grand  Trunk  R.  Co.,  22. 
of  Senator  Wright,  in  Dykers  v.  Allen,  22. 
of  Mr.  Justice  .Millkr,  in  Partridge  v.  Insurance  Co.,  23. 
of  Stonk,  J.,  in  Jiarloiu  v.  Lamheri,  23. 
different  views  (Hitertained  by  other  judges,  23-25. 

the  opinion  of  tlie  Supremo  Court  of  Vermont:  "Usage  and  custom  will 

accomplish  evorytiiing  except  impossibilities,"  23. 
their  iiitroduclion  favored  by  IIuhbaud,  •!.,  of  the  Supreme  Judicial  Court 

of  Massachusetts,  28. 
views  of  Kanxey,  .1.,  on  the  evils  which  would  result  ironi  their  rejection,  23. 
the  dilliculty  of  the  subject  pointctl  out  by  Dewey,  J.,  in  Clark  v.  Baker,  24. 
the  universality  of   their  influence  shown  by  Baldwin,  J.,  in    Wilcocka  t. 

Phillips,  24. 
Thomrson,  C.  J.,  of  Pennsylvania,  favors  their  admission  into  the  law,  24. 
Lord  Campbell's  views  in  Humfrey  v.  Dale,  25. 
liberality  shown  in  Knglund  of  late  years  in  admitting  them.  25. 
the  American  cases  .still  contradictory  and  confusing,  25. 
the  different  kinds  of  usages  and  customs  considered  in  this  work,  26. 
particular  customs  delined,  26. 
usages  of  trade  defined,  26. 
i\w  custom  of  a  particular  jierson,  26. 
a  coinmon-iiiw  custoni  must  bo  ancient,  26,  27. 

if  its  commencement  could  be  shown,  it  wa«  void,  26. 

to  be  "ancient,"  it  must  have  existed  from  a  time  "  whereof  the  memory  of 
man  runneth  not  to  the  contrary,"  26. 

origin  and  liistory  of  this  limitation,  26,  27. 

nut  applicable  in  tho  United  States  on  account  of  the  newness  of  the 

cduntry,  27. 
except,  perhaps,  in  ^'irginia,  27. 
a  usage  applicable  to  a  particular  trade  or  profession,  if  established,  need  not  be 
ancient,  Sewall  v.  Corp,  2. 
this  principle  establish.jd  in  an  early  English  cuse  by  Lord  Mansfield,  29. 
what  is  meant  '-j  "established,"  29.  30. 

cases  to  be  tested  by  their  circumstances,  29. 
illustration.s,  30. 
n  common-law  custom  must  be  certain,  30,  32. 


INDKX. 


49f) 


CUSTOM  AND    Vi^XGE  — Continued. 

principlo  explained  bj*  Mr.  IJRf'WNK.  ;'l. 
illustnitions  of  uncertain  nnd  void  cii^toip.^.  3i. 

custom  thiit  Inml  shall  descend  to  the  tnoat  worthy  of  the  owner's  blood,  '.\\. 
custom  for  poor  and  indifjent  hoKseholdera  to  cut  nnd  carry  awny  rotten 

boughs  and  brniicho-  in  a  i.haso,  Jil. 
custom  to  pay  sometimes  two  pence  and  sonietimf^s  tliree  pence  in  limi 
of  tithes,  ?.i. 

but  tf^  cerftitn  est.  quod  en  turn  redi  putest,  :?]. 
>tom  for  tenants  of  collieries  to  throw  earth,  stone,  coals,  etc..  war  t<) 
certain  coal-pits,  SI. 
customtodii^turf  for  making  or  repnirini;  grass-plots  as  occasion  /vya/y.j, 

31. 
custom  for  occupiers  of  brick-Uiins  to  carry  away  as  much  (.-lay  as  \v  is 
at  any  time   required  by  tlien;  to  iiiaKe  brick^.  ;{2. 
the  u^age  of  a  particular  trade  must  be  certain  and  uniform  tu  make  it  binding  on 
transactions  in  that  trade.      Wood  v.   U'/'od,  .'i 

illustrations  of  usages  void  lor  uncertainty,  '53,  36. 

u?age  in  cloth  trade  tliat  seller  could  demand  L'oods  back  unless  notilled 

by  buyer  within  three  days,  a  week,  or  a  month,  133. 
usage  of  veterinary  surgeons  to  charge  for  attendance  as  well  aa  medi- 
cines when  there  is  not  much  medicine  required,  33. 
usage  of  merchants  to  deliver  good'^  soli  lor  cash  without  demanding  the 

cash  when  seller  consider>  the  purchaser  good,  33. 
custom  among  wholesale  merchants  to  allow  salesman  for  time  lost  by 

sickness.  38. 
usage  among  brokers  that   margins  put  up  to  cover  advance  must  be 

'•reasonable.'"  33, 
custom  among  eummission  merchants,  on  sales  for  cash,  to  wait  two, 

three,  or  four  days  for  the  money,  .';3. 
custom  among  Commission  merchatits  in  Indianapolis  that  flour  of  a  grade 

not  suitable  for  sale  there  is  forwarded  to  New  York,  33. 
custom  of  hotel-keepers  as  to  deposit  of  money  by  guests  in  safe,  34. 
custom  of  merchants  as  to  what  is  meant  by  "borrowed  money,"  -34. 
custom  of  surveyors  in  making  measurements,  36. 

usage  of  captains  of  steamboats  to  give  premium-note  for  insurance,  36. 
usage  of  trade  which  lujs  no  limit  in  extent  is  ba(i,  36. 
customs  must  be  compulsory,  30. 
explanation  of  this  rule,  36. 

custom  to  contribute  at  one's  own  pleasure,  void,  CC. 
customs  must  be  consistent,  36. 
explanation  of  this  rule,  36. 
customs  must  be  continued.  3'j. 

interruption  of  custom  avoids  it,  37. 

but  to  liave  this  force  it  must  be  an  interruption  of  the  usage,  not  of  the 
right,  37. 
usage  proved  to  exist  at  a  period  long  liefore  the  tr;  usaction  to  be  affected, 

and  not  since,  inadmissible.  :')7. 
custom  of  charging  interest,  different  with  different  city  oflleers,  invalid,  37. 
witness's  knowledge  being  not  later  than  a  year  before  his  introduction,  usage 

inadmissible.  37. 
mere  habit  of  accommodation  or  indulgence  does  not  make  a  usage,  37. 


:l! 


ftOO 


INDKX. 


OUSTOM   AND   USAGK  —  Cow^in"-?/. 

creditor  niiiy  iiululgo  debtor  in  ono   lase  without  binding  himself  a»  to  other 

dealings,  87. 
illustration  of  indulgences  which  do  not  amount  to  u.^age.^,  37,  38. 
habit  of  merchants  to  pay  debts  by  checks  37. 
to  pay  workmen  in  orders  for  goods,  38. 
not  to  pay  wages  punctually,  38. 
habit  to  call  on  workman  to  rectify  careless  job,  33. 
habit  to  take  currency  in  payment,  38. 
favors  by  bank*  to  depositors,  3!i. 

practice  of  mills  to  give  certificate  of   honorable  discharge  to  opera- 
tives, 38. 
owner  allowing  certain  persons  to  cut  timber  on  his  land,  .38. 
act  of  railroad  in  paying  for  medical  attondai»ce  of  employee,  38. 
but  a  practice  of  a  business  cannot  be  arbitrarily  changed  to  the  prejudice 
of  others,  38. 
illustration  of  dealings  between  ba.iker  and  customer,  39. 
a  common-law  custom  must  be  general,  39. 

illustrations,  40. 
the  rule  of  law  as  to  importing  into  the  terms  of  a  tenancy  the  custom  of  the 
country  does  not  admit  of  avidcace  of  the  usage  of  a  particular  estate  on  the 
property  of  a  particular  individual,  however  extensive  it  may  be.     WoinenUy 
V.  Dally,  5. 
how  far  generality  required  of  a  particular  custom,  40. 

contradiction  to  say  that  a.  particdar  custom  must  be  general,  40. 
generality  only  material  as  atfecting  the  question  of  knowledge  of  the  cus- 
tom, 40. 
usage  may  bo  "general"  though  confined  to  a  particular  city,  town,  or  vil- 
lage, 41. 
iastances  of  inadmissible  usages  under  this  head,  41. 
usage  of  a  single  house,  41. 
of  a  single  mill,  41. 
of  only  ono  person,  41. 
of  one  railroad  company,  41. 
custom  in  New  Orleans,  Cincinnati,  and  Louisville  does  not  prove  a 

general  custom  on  the  Mississippi  River  and  its  tributaries,  41. 
practice,  to  amount  to  u  usage,  must  be  the  mode,  41. 
payment  of  loss  by  bank  in  an  unusual  case,  41. 
particular  instances  of  dealings  in  one  or  two  banks,  41. 
a  particular  banking-usage  must  apply  to  a  place,  not  to  a  particular 

bank,  41. 
usage  of  municipal  corporations  must  be  general  among  like  towns  and 

cities,  and  not  local  in  one  place,  41. 
a  few  instances  of  transshipping  goods  or  stopping  at  a  particular  port 

does  not  establish  a  usage  in  the  shipping  trade,  42. 
boat  putting  into  port  sometimes,  but  not  usually,  42. 
usage  of  coal-miners  not  suflSciently  proved  by  a  miner  who  only  worked 

in  one  shaft,  43. 
proof  that  a  practice  is  "  very  common  "  in  a  trade  does  not  establish  a 

usage,  43. 
that  it  was  "  very  unusual "  to  do  a  thing  does  not  show  a  usage  not  to 
do  so,  43. 


INDEX. 


M)l 


If  a»  to  other 
IS. 


,rge  to  opera- 

38. 

yee,  38. 
the  projuJico 


I  custom  of  the 

r  estato  on  the 
,e.     Womenley 


5,40. 

dge  of  the  cua- 

,y,  town,  or  vil- 


ia  not  prove  a 
ries,  H. 


to  a  particular 
liko  towns  and 
particular  port 

Lo  only  worked 

I  not  establish  a 

a  u=nge  ti'^'-  ^ 


Crr^TC)  M    AN  1 1    US  AGE  —  Continued. 

instiiiKfi  of  us;ii;c'i»  sustftined  as  suftioiciitly  f^eneral,  41. 
ciistotn  prevailing  in  three  dlfferenl  ■•-tiiblishmenls,  44. 
custom  of  liver  iis  to  booming  logs,  41. 
custom  II'  t'l  iK'gotiable  paper  in  Iowa,  44. 
custom  of  ship-brokor,  44. 
a  person  entering  into  a  contract  is  not  bound  by  the  usHge  of  a  particular  busi- 
ness unless  it  is  so  general  as  to  furnish  ii  presumption  of  knowlodgf,  or  it  is 
proved  that  he  was  acquainted  with  it.     It  was  a  rule  in  a  cotton-fuctory  in  A., 
aii'i  some  neighboritig  factories,  that  no  person  employed  should  leave  their  ser- 
vice witlK'Ut  giving  a  fortnight's  notice  of  his  intention  to  quit.     A  weaver  who 
did   not  know  of  this  rule  worked  in  the  fictoi-y  without  any  agreement  as 
to   the  terms   of  service,  but  was  paid  by  the  yard  for  the  work  which  ii'' 
turned  out.     He  left  the  factory  without  giving  any  previous   notice.     Held, 
that  the  rule  was  not  binding  on  liiin.  ntul  that  he,  therefore,  was  not  liable  to  an 
action  for  damages  by  the  owner  of  th  ■  factorj*  for  thus  leaving.     Stcrfns  v. 
Jiecves,  G. 
general  commercial  usage  presumed  to  be  known  to  all.  4'). 
but  not  so  as  to  particular  usages,  ■  ■. 
knowledge   of  particular  usages  mu-i  bo  shown  by  express  proof,  or  by  evidence 

of  their  generality  and  notoriety,  4o. 
custom  prevalent  between  owners  and  tenanis  of  parti'iilur  estate  not  presumed 

to  be  known  to  tenant,  45. 
particular  usages  of  insurance  trade  not  pre    .mod  to  be  known  to  dealers,  4o. 
Bo  also  of  the  usages  of  carriers,  45. 

usages  not  known  to  parties  not  biniling  —  other  instances.  45. 
usage  of  auctioneers  as  to  feer  for  services.  4o. 
of  factors  as  to  disposition  of  funds  of  principals,  45. 
of  merchants  as  to  commissi^!ls  allowed  to  agents,  40. 
of  cabinet-makers  as  to  employment  of  workmen,  4<J. 
of  brokers  as  to  indorsement  of  checks,  40. 
of  lessor  of  mine,  46. 

of  livery-stable  keepers  to  have  a  lien  on  horses  boarded,  40. 
of  publishers  as  to  authors'  copyright,  4ti. 
of  printing  establishments  as  to  sale  of  good-will,  40. 
of  hotel-keepers  as  to  deposit  of  money  of  guests,  40. 
usages  of  the  Stock  Zxchange,  47-50. 

person  dealing  in,  or  employing  broker  to  deal  in.  Stock  Exchange  presumed 
to  agree  to  its  usages,  47. 

illustrations  in  the  English  decisions,  47-49. 
persons  having  only  occasional  dealings  with  brokers  not  presumed  to  know 
their  usages,  49. 
usage  of  brokers  as  to  "straddle"  contracts,  49,  50. 
usage  as  to  charges  for  telegrams,  50. 
customs  of  servants  of  corporations.  50-52. 

usage  of  servants  of  corporation  not  known  to  officers  not  binding  on  it,  50_ 
but  their  knowledge  may  be  implied  from  the  notoriety  of  the  usage,  50. 
custom  of  conductors  on  railroads  to  pay  out  small  bank-notes,  in  viola- 


ti( 


)f 


51. 


statute, 
custom  of  merchants  to  charge  interest,  52. 

must  be  known  to  customer,  to  bind  him,  52. 

but  knowledge  may  be  implied  from  previous  dealings,  52. 


m 


502 


INDEX. 


CUSTOM   AND   UHMlK  —  ConfmuoL 
c'istoins  of  banks,  5;;. 

ciisfs  which  hold  that  in  order  to  atfect  a  pcrsmi  with  tlie  iijiige  of  a  particu- 
lar bunk  he  must  be  shown  to  li;ivo  known  it,  criticised.  5:5. 
long-ostablished  usages    of  banks  binding  oi\  customers,  whether  known  to 
th(!m  or  not,  5:5. 
customs  of  particular  trades  or  professions,  o'-i. 

all  trades  have  tlioir  usages,  whicli  are  presumably  part  of  every  contract 

made  with  rofereni'e  tliereto,  'y.l. 
not  inat(  ''ial  that  party  had  express  notice  of  them  in  following  cases,  53. 
custom  of  veterinary  surgeons  to  charge  lor  attendance  as  well  as  medi- 
cines, 53. 
custom  among  dry-goods  jobbers  not  to   dismiss   clerk   until   end  of 

season,  54. 
custom  of  glass-ware  manufacturers  to  allow  agents  commission  on  goods 

ordered  directly  througb  manufai.'lurer.  54. 
custom  of  em|)loyers  !-ei|iiiring  of  servants  notice  of  intention  to  leave, 

nui-t  lie  known  to  latter,  54. 
not  sutlicieni  tliat  ])rinted  notice  was  placed  in  employee's  hands,  unless 

he  could  read.  54. 
if  servant  has  no  notice  at  timo  ho  conmiences  work,  subseqvieiit  notice 
does  not  art'ect  liim.  54. 
distinction  siiould  l>e  made  Ijetwoen  local  and  general  customs  of  this  char- 
acter, 54. 

latter  may  be  presumed  to  be  known  to  servant  or  employer,  54. 
customs  in  insurance,  law.  55,  5(). 

particular  customs  not  known  to  insured,  inadmissible,  55. 

custom  to  charge  extra  premiums  on  unoccupied  dwelling-houses,  55. 
usage  to  require,  as  proof  of  death,  curtiticato  from  attending  phy.-ician 

of  deceased,  55. 
usage  for  insurer  to  receive  notice  of  increase  of  risk,  and  to  have  option 

of  continuing  or  aimuUing  policy,  55. 
custom  that  term  •'carpontei-s,"  in  policy,  referred  to  the  employmi?nt 

of  carpontcrs  in  adding  to  buildinLjs  insured.  55. 
custom  to   reject  applications  on  buildings   previously  tired  by  an  iii- 

cendiarj',  55. 
custom  to  rc(]uire  notice  of  tidditional  insurance  to  In-  given,  55. 

this  case  open  to  criticisni  on  other  grounds,  55,  note. 
custom  not  to  deliver  policies  to  agents  unless  insured  was  at  the  time  in 

good  health,  55. 
custom  to  require  applications  for  additional  insurance  to  be  in  writing, 

5&. 
usage  to  construe  "  tandii\g  iletachod  "  as  meaning  that  subject  shall 

be  at  l(<ast  twenty-iive  feet  from  external  exposure,  55. 
usage  to  require  preliminary  survey  of  goods  damaged  by  port-wardens, 

55. 
usage  as  to  mode  of  adjusting  losses,  5t). 
particular  customs  not  known  to  insurer  also  inadmissible,  50. 
eust  .m  for  watchman  at  factory  to  leave  on  Sun  lavs,  5(5. 
custom  not  to  regard  the  Straits  of  Xortliumli.M-la  i  I  .as  within  the  Gulf 
of  St.  Lawrence,  5t). 
knowledge  of  custom,  when  not  presumed,  oH. 


INDEX. 


5J3 


verv  contract 


lin  the  0-ulf 


CUSTOM   AND   VSXGK  —  ronfinued. 

cii.stoin  oixnnol  ullect  tlioso  between  wliom  rliore  is  no  privity  of  contract,  56. 
custom  between  brewers  mid  tiivern-itccpi.TS  ciinnot  atieot  distillers,  56. 
custom  cannot  att'ect  those  is^noraiit  of  it.  ''u,  oH. 

custom  of  bmk  cannot  bind  party  who  does  not  inteml  to  be  brought  within 
its  opera!  ion,  57. 
custom  )f  bank  doe-:  not  atTect  note  not  p:iyable  there,  58. 
one  instance  of  a  praftico  will  not  show  a  usage,  58. 
but  iii'iy  show  Unowledijo,  58. 
a  custom  mu-t  be  mo»»l,  o'*. 

custom  i^iving  to  lord  of  manor  riu;ht-?  of  ('oncubinago  with  tenant'?  wives 
on  their  wedding-nights,  immoral,  oS. 
3uch  custom  denied  in  England,  5*^. 
in  an  action  by  one  for  the  seduction  of  his  daughter,  a  custom  of  "  bund- 
ling"—  i.e.,  for  persof.s  (jourting  to  sleep  together  —  cannot  b(!  sot  up  by 
him  to  excuse  his  coMiiivanoe  at  the  intercourse.     Sengnr  v.  SUgerland,  ',♦. 
custom  of  "bundling"  des.'ribed  by  Washington  Irving,  50. 
custom  of  "  bundling"  rejoetod  inaction  for  seduction  in  Pennsylvania  ia 

1845.  59. 
custom  of  promiscuous  cohabitation  among  free  and  slave  blacks,  60. 
imnior.il  customs  in  Engl:i  i  I.  'U.  note. 

in   pros.'cution   for  adultery,  customs  allowing  great   familiarity  between 
men  and  women  rejected,  01. 
but,  in  proving  adultery  by  circuui  lantial  evidence,  social  habits  of  the 
parties  relevant,  CI. 
custoii  of  the  charivari,  ijl,  62. 
cannot  excuse  murder,  G2. 
or  riot,  612. 
a  custom  must  be  peaceable  and  acquiesced  in.  62.  63, 
consent  of  all  necessar\-  to  validity  of  cu>lo'iis.  62. 
illustratio:;s  of  usages  void  because  not  assented  to  by  th(?  public,  63. 
diction  in  Alabama  case  criticised,  62,  note. 
a  custom  or  usage  of  trade  must  be  reasonable,  and  it  is  not  so  if  it  is  such  as 
honest  and  right-minded  men  would  deem  unfair  and  uiu'iglitcous.     So  held  of 
a  usage  of  undertakers  to  charge  the  original  costofarticles  u-(!d  at  any  funeral, 
although  the\'  might  be  used  at  other  funerals.     I'a.cton  v.  Cuurtnai/,  11. 

usage  in  strawberry  business  to  put  all  big  strawberries  at  top  of  box  un- 
reasonable, 11,. 
acu-tom  of  a  particular  port  that  seamen's  advance  wages  due  under  the  shipping- 
articles  shall  be  paid  to  the  sbipping-agcnt,  to  be  paid  by  him  to  the  boarding- 
house  keeper  bringing  the  seamen,  for  their  benelil,  is  unreasonable,  and  does 
not  bind  the  seamen,  although  known  to  them  at  the  lime  of  signing  the  ar- 
ticles.    Metcalf  V.  Weld,  12. 
what  is  meant  by  "  unreasonable,"  63. 
custom  good  if  reason  caimot  be  given  against  it,  64. 
customs  against  rules  or  maxims  of  common  law  not  bad,  64. 

as  gavelkind  and  borough-English,  wliich  are  contrary  to  tlie  law  of  descent, 

64. 
or  custom' of  Kent,  which  is  contrary  to  the  law  of  escheats,  64. 

but  custoi.is  contrary  to  legal  rules  or  public  jiolicy  are  bad,  64. 
customs  beiMtleial  to  the  public  good,  though  injurious  to  some,  64,  65. 
as  custom  to  pull  down  houses  to  prevent  spread  of  fire,  64. 


504 


INDEX. 


CUSTOM   AND    USAGE  — Co^/j/t/^ erf, 

to  turn  ploiii^li  (-n  (mother's  lieacllanfl,  'U. 

to  dostrcy  corrupt  victuals  exposed  lor  bhIc,  (U. 

to  oblige  person  to  tiiko  cilice  under  pennlty,  (14. 

to  exempt  factors  from  paying  dutj'  on  corn,  64. 

to  dig  gravel  on  adjacent  land  to  repair  way,  tj4. 

to  have  a  watering-place  in  adjacent  land,  lit, 

to  dig  for  ballast,  t')4. 

to  dry  nets  on  Miiotlior's  latul,  ti4. 

to  cut  rushes  on  lord's  land,  til. 

ti>  distrain  goods  of  ship  for  port  dues.  tir). 

for  h)rd  of  manor  to  have  toll  on  all  goods  landed  on  wharf  which  ho  kept  In 
repair,  (15. 

to  take  part  of  barley  exported,  05. 

to  enter  on  close  for  horse-raeing,  ti-">. 

to  (!:g  for  day  to  make  bricks  on  lord's  land.  05. 
customs  not  uiu'casonable  if  simply  inconvenient,  O-'i-i!?. 

cu.~tom  for  all  inhabitants  to  play  at  games  in  a  ptirlieular  close,  65, 

to  dry  nets  on  land  adjacent  to  the  sea,  (I'l. 

to  gi'iiid  wheat  at  mill  of  lord  of  manor,  (10. 

to  grind  corn  in  their  own  houses  and  pay  toll,  00. 

to  receive  toll  on  all  corn,  Otl. 

for  victuallers  tocrctt  booths  on  common,  O'l. 
customs  injurious  to  public  bad,  though  beneficial  to  some.  07. 

custom  that  commoner  cantiot  turn  in  his  cattle  till   ;i!ter  bird,  07. 

that  lord  shall  have  a  line  for  every  pound  breach.  (17. 

cu.Uoms  in  restraint  of  trade,  (17. 

to  go  through  a  particular  lions-'.  (17. 

to  train  horses  beyond  limits  of  parish,  liT. 
existence  of  unreasonable  modern  usages  douiited,  07,  OS. 

by  TiioMi'SON,  C.  <h,  in  McMasters  v.  Pennsyluaida  R.  Co.,  67. 

by  (JiiKVKs,  J.,  in  South  Carolina,  07. 
usages  j)/'t»H (7,  /acjie  are  re:i.soiii»l)le,  08. 
the  tost  of  their  roason:il)leness.  (18, 
courts  will  reject  unreasonable  usages.  (1*^. 

unless  parties  have  actually  incorporated  them  in  their  contrncts.  08,  09. 
unreasonable  usages  bc.lwoen  vendor  and  purchaser,  (19,  70. 

custom  authori7-ing,  on  contract  for  goods  of  specified  character,  delivery  of 
ditl'erent  goods,  00. 

on  sale  of  goi^ds  of  one  mill,  delivery  of  goods  of  another  mill,  09. 

that  sales  of  particular  class  of  goods  are  subject  to  approval  of  public  in- 
spector, but  if  there  is  no  such  inspector,  buyer  nuiy  rescind  purchase  at 
pleasure,  09. 

that  no  title  passes,  tipon  ordinary  sale  and  delivery,  without  actual  payment 
of  consideration  within  certain  number  of  days,  (19. 

that  if  note  is  given  for  gold-mine,  and  it  proves  unproductive,  it  is  given 
up,  09. 

for  merchants  to  sign  receipts  presented  by  cartmen  with  goods,  without 
inciuiry  on  part  of  reeeiving-derk  as  to  their  ownership,  or  place  from  which 
they  were  roc'  ived,  ii9. 

of  board  of  trade,  on  cash  sales  of  produce  or  provisions,  giving  buyer  privi- 
lege of  having  them  inspected  at  his  own  lixponse,  09. 


INDKX. 


50.^ 


ich  ho  kept  In 


e,  G5. 


G7. 


=.  G8,  69. 
r,  delivery  of 

69. 

L)f  public  in- 
purcliii.se  iit 

ual  piiyiiient 

e,  it  is  given 

Jds,  without 
>  from  which 

buyer  privi- 


CUSTOM    AND    V^MiE- Continued. 

amon-  doiiler.s  in  cott-.t.  as  to  wan.h.,use.receipt.s   60 

nuWsernent  of  purchas,.,  latter  .s  dischar^od.  and  .naKer  alone  r..m:,in« 

'T',:u:;!"r '" '"'' """  ^""^  ""*  *^  ^'^^^'^  ^^°^«^  ^^-  ■-«  -^  ---t- 

unrc."^,!;;;!;;;:: '""''  7ri''  "":\^^""-^'^  '"^"-^^ «« "'"""'s  «e..ount,  .19. 

uni(.i.M)nal)l('  usairns  of  banks  and  bankers   70 

li^t'rir""''?',  "";•'■'""'  '"■  """■'"^■" '"  «"->  ^^"-"'"?.  70. 

not  to  reetily  mistakes  discovered  after  person  i.-avs  bunk   70 

™,.,. ,.  Ji;:;;::,::T::,;:;ii:::;:,:,!:r;-7««--.'- .-.  70. 

that  to  constitute  delivery  of  ...ods  by  carrier  by  water,  receipt  must  be  -nvcn 

to  the  earner  by  con-iifnee  or  ai,'.Mit,  71  J  i- muhi  oe^uc  n 

that  frci^l.t  paui  i„  „<l,,„.„,  ,,,yZiC  recovered  back,  tl.oii.b  not  earned  71 

tlnu  no.icc  publ...i,e.l  in  three  newspapers  in  ci.y.  of  time  and  place  oltd: 

.n.^.....s  by  stean.boat,   is  such  a  noUce  as  places  tbem  al  risk^f tl 

amon.  owners  of  tow-boats  that  first  coniin,.  alongside  of  a  .ship,  on  a  signal 
I'T  sfam,  has  absolute  towin-contract,  71.  ^ 

requiHii-  those   in   Icirul   use  .,f  waters  'is  ;  bi..!,, *       •  ,  ,  . 

are  u.in,  them  lor  L  unlawful  ^P^Z   tI''  "'  ■'""'  ^"  ''^'^^^  ^'"• 

that  cont.a,.t  made  to  furnish  and  carry  coal  to  a  certain  port  for  sale  m.v 
b^t,irownu,.,either  party,  at  his  convenience,  no  d^^ 

"'1^1".:;;;^:;:;:^:;;:^^'- '"' ''--'- '" ""  -^^'^  ^v,..  ,oods 

that  before  consij,niee  can  obtain  bis  wn^.t  from  comp:.nv's  bins  he  nnnt  shm 
receipt  lor  quantity,  72.  ■>  "'o..  ml  niu>isi<,'ri 

that  railroad  will  not' be  responsible  for  content.,  of  cars  of  which  their  se 
vants  have  the  keys.  72.  tJieir  ser- 

that  passengers  cannot  take  their  baggage  to  state-rooms   72 

to  land  goods  on  banks  of  river,  72.  ' 

t.  deliver  cargo  at  a  distance  fr.'.m  consignee's  wharf  ',■'> 
unreasonable  usages  of  insurance  companies   73 

to  require  prelin.inary  survey  of  damaged  g'oods  by  port-wardens,  73 

to  pay  only  two-tlurds  of  gro.ss  freight  on  a  total  lo.s    73 
uiir.  asonable  usages  between  master  and  servant  73 

that  if  len.ale  slave,  hired   by  month  or  wei.k,  "is  confined  and  delivered  of 
ehild  during  term,  owner  shouhl  p.v  oortain  sum  to  hirer  73 

nrn,>ng  wiolesale  d^ders  allowing  salesmen   pay  lor  time 'lost  by  „ic-^«.3 
without  regard  to  length.  73.  ^  o'v-...„,, 


n 


•i 


:f;|;; 


506 


INUKX. 


CUSTOM    AND   U»\GE  — Continued. 

tor  .sawyers  to  ship  lumber  ininistcd  to  them,  and  converted  into  logs,  to 

lumber  factors,  to  bo  sold  by  thorn,  7:!. 
that  i)(M'.soM  employed  to  cut  staves  from  ii;'i>ther's  bolts  has  right  to  take  to 

his  own  use  clippings,  corner-pieces,  and  culls,  without  consent  of  owner, 

73, 
of  plasterers  to  cliari^e  not  only  for  space  covered,  but  for  one-half  of  surface 

iiccupied  by  opeiiings,  73. 
unroasoniible  usas^es  among  public  officers,  74. 

for  flour  inspector  to  talco  to  his  own  usi?  flour  drawn  from  barrel  in  procejj 

of  inspcctitin,  as  perquisite,  74. 
of  government  officers  to  accept  bills  without  consideration,  or  to  pledge 

oreilit  of  nation  as  surety  for  accommodation  of  contractor,  74. 
for   holders    of  settlements   and    preemptions   of  land   to   give  ono-half  ti> 

another  for  surveying  and  paying  expenses  for  carrying  claims  to  grant,  74 
in   making  surveys  for  locations  of  governtneiit  land  granted  to  settler,  [•■ 

include  more  land  than  warrant  actually  called  for,  74. 
unreasonable  usages  among  principal  and  agent,  7o,  77. 

that  one,  without  authority  from  owner  of  lands,  may  dispose  of  them  o:i 

ordinary  terms,  and  bind  owner,  75. 
among  owners  of  vessels  to  accept  bills  of  their  masters  for  supplies  fur- 
nished abroad,  75. 
that  the  master  cf  a  vessel,  as  such,  may  purchase  a  cargo  on  account  of 

owners  without  authority,  75. 
to  sell  vessels  without  authority  from  owners,  75. 
for  broker,  employed  to  purchase  stock,  to  buy  stock  for  himself,  without 

principal's  knowledge,  75. 
that  agout  may  sell  property  of  principal  before  he  is  instructed  to  do  si),  75. 
of  agents,  in  collecting  drafts  for  absent  p;nties,  to  surrender  tiiem  todrawoci 

at  maturity,  and  take  checks  upon  banks,  75. 
of  brokers  of  taiuied  skins  to  insert  in  memorandum  of  sale  warranty  ot' 

f]uality,  7t). 
of  warehouse-keepers  to  have  general  lien  on  goods  in  their  hands,  76, 
that  person  employed  as  agent  may  engage  in  another  business,  76. 
for  ship-brokers  to  receive  a  commission  for  introducing  buyer  to  seller,  7*). 
for  agent  to  act  for  both  parties  and  receive  pay  from  both,  7(i. 
for  insurance  agent  to  receive  commission  on  renewal  premiums  after  ter- 

miinvtion  of  his  cngagenient,  7'). 
of  wharfuigors  to  deliver  goods  without  responsibility,  77. 
miscelianeou-:  unreM-innabb,'  usages,  77. 

to  use  and  iniitut(^  the  tr.ule-marks  of  foreigners  with  impunity,  77. 

of  pulilishers  of  newspajjcrs  to  insert  advertisements  after  object  of  advertise- 

ent  has  cca^.ed,  77. 
to  mine  coal  without  leaving  pillars  to  support  surface,  77. 
that  when  persons  clear  place  for  seine-flsliing,  they  iiold  it  against  world 

during  fishing  season,  77. 
of  owners  of  mines  to  dispose  of  water  pumped  therefrom,  by  allowing  it  to 

How  into  adjacent  tuitural  watercourse,  77. 
that  outgoing  tenant  of  farm  siiall  look  exclusively  to  incoming  tenant  for 

compensation  for  seeds,  77. 
the  habit  of  .m  individual,  78-82. 


IM»K.\. 


507 


ilf  of  surface 


self,  without 


warranty  ot 


ms  after  ter- 


CL^STOM  AND    USXGE  -  C,ntiu.,.,L 

examples  of  this  kin,]  of  ..vi,Io„ce  .vceivcl.  7S. 
custjiii  of  purt.v  as  to  giviiii;  rc.MMpts,  70 
as  to  giving  noti.'e  of  additional  insurance,  ?.\ 
as  to  signing  will.  70. 
custom  of  attorney  i,,  giving  dirc'tions  a.  to  writs   79 

hab.ts  of  uther  attorney,  in  ..nv  place  irrelevant.  80. 
custom  of  railroad  ag.nts  to  mark  cotton  received  80 
custom  on  board  of  trade.  SO.  '      ' 

custom  of  bank  clerk  to  .etth'  books  dailv  80 

of  owner  of  mill  to  giro  , cipt  for  grain".  80  ' 

of  party  to  accept  drafts  only  in  writing.  M. 
of  bank  clerk  to  personally  notify  parties  81. 
of  notary  as  to  mailing  notice.  3i. 

party's  practice  may  explain  ahhroviation.  and  .vmboU  in  bool"    s- 
examples  of  this  proof  rejected.  81.  82.  '  "      ' 

cu,to,n  of  insurance  agent  to  enter  policy  in  bo„k.  Si 
ot  factor  to  enter  ^ales  HI. 

habit  of  justice  of  the  pea^e  to  read  over  bills  of  ..le  to  -i^ners  81 
to  deliver  executions  to  ortlcermakin- attachment   ^1         ="''"•  **^- 
custom  does  not  obligate  mode  of  executing  contract   s" 

oral  insurance  contract  good,  thuugli  usually  in  writTn.^  ^-^ 
entries  made  in  usual  course  of  business,  ^9-84.' 
evidence  after  party's  death,  82. 

if  they  are  party's  books  of  account  kept  in  regular  cour<e   83 
shingle  containing  minutes  of  hunher  lunved  admissible,  si. 
also  notched  stick  and  wooden  tallies,  ><:i. 
memoranda  of  sawyers  on  boards.  H:i. 
scraps  of  paper,  84. 

general  customs  are  judiciallv  -.oticed   9(J 

"IScK  oT™'""""  '■*•""""-"'  '»  '"".i-'l.  »»ol.  olhor.  customer.  „ah 
to  fish  in  private  ponds.  Oi;. 
of  church  to  keei)  a  record,  9»J. 
customs  of  brokers,  90. 
custom  of  banking  hours,  Ot). 
other  banking  customs  jiidiciallv  noti.-ed   00 
particular  usages  and  customs  must  be  proved.  90 
necessary  by  parol  evidence,  90 

particular  customs  of  banks  cannot  be  judicially  noticed  96 
nor  custom  of  city  as  to  .radin.^  streets,  97         "     ''"'"'•  ^«- 
usages  of  another  State.  !i7. 
burden  on  party  setting  up  usage,  97. 
custom  must  be  given  in  evidence'  07 

cannot  be  found  by  jury  from  tl.'ir  own  knowled..,  97. 
one  witness  may  prove  a  custom,  ',.7   'is 

contrary,  dictum,  in  Wood  v.  //:./,,  criticised,  97. 
conflicting  decision  in  S.xith  Carolina,  08 
rule  in  Alabama,  98. 


f){)S 


INDEX. 


CUSTOM   AND    V S Mi E  — Continued. 
in  tl>e  Federal  courts,  98. 
in  Massachusetts,  ',t8. 
ft  usa^e  of  a  particular  business  is  not  sufficiently  proved  by  the  testimony  of 
only  one  witness  to  support  it,  where  another  witness,  equally  familiar  with  the 
busino.^s,  denies  it,  and  where  other  witnesses  on  the  subject  might  be  had. 
Parrott  v.  Thacher,  85,  99. 
mode  of  proving  usaj;;es  and  customs.  99-103. 
where  legal  liability  is  to  bo  affected,  99. 
fact  of  usage  must  be  shown,  99. 
and  not  opinions  of  parties.  9'.t. 

witness  need  not  testify  to  individual  cases,  if  he  swear  to  the/ac.',  100. 
where  mercantile  terms  are  to  be  explained,  101. 
persons  may  give  their  opinions,  101. 
but  not  their  opinion  on  its  legal  effect,  101. 
admissibility  of  dictionary,  lOJ. 
to  explain  doubtful  words  in  will,  102. 
usages  provable  by  parol,  102, 
of  land  office,  by  published  decisions,  102. 
reported  ease  of  usages,  admissible  in  subsequent  case,  102. 

unless  its  decision  was  by  agreement  of  parlies,  103. 
decisions  of  State  courts  evidence  in  Federal  courts  103. 
mining  customs;  v.'iiole  book  must  be  put  in,  103. 
who  may  be  called  as  witnesses,  103. 

anj-  jterson  who  knows  of  the  custom  as  a  fact,  learned  by  observation,  103. 
custom  of  architects  may  be  proved  by  biiildt-rs,  103. 
of  adjusting  losses  on  iron,  by  insurauee  brokers,  103. 
of  banks,  by  customers  of  bunk.  103. 
order  of  proof,  103. 

object  and  pertinency  of  proof  must  be  sliown,  103. 
proof  of  notice  may  be  reserved,  when,  lOi. 
proper  questions,  103. 

inquirj'  as  to  the  mode  of  business  not  a  que-tion  of  law,  103. 
quantum  of  evidence,  104. 

witnesses  need  not  all  agree,  104. 
contradictory  evidence,  104. 
newly  discovered  evidence,  104. 
law  and  fact,  104. 

whether  usage  is  established  is  for  jury,  104. 
whether  it  is  binding,  for  the  court,  104. 
reasonableness  of  usage,  for  court.  104. 
in  cases  of  written  instruments,  105. 
M.  &  W.,  fruit-brokers  in  London,  being  employed  by  l\  <.      ■..    merchants  in 
London,  to  sell  for  them,  gave  them  the  following  contract  nove,  aildressed  to 
F.  &  D. :  "  We  have  this  day  sold  for  your  account  to  our  principal     *    *     ■ 
tons  of  raisins.     M.  &,  W.,  brokers."     The  priiiciptil  having  accepted  part  v\ 
the  raisins,  and  not  having  accepted  the  rest,  F.  «fe  D.  brought  an  action  on  the 
contract  against  M.  &  W.,  and  sought  to  make  them  jiorsonally  liable  by  the 
custom  of  the  trade.    On  the  trial,  in  addition  to  evidence  of  a  custom  in  the 
London  fruit-trade  that  if  brokers  did  not  give  the  names  of  their  principals  in 
the  contract,  they  were  held  personally  liable,  although  they  contracted  as  brokers 
for  a  principal,  they  offered  evidence  of  u  similar  custom  in  the  London  colo- 


iM)i;x 


50:» 


CL-STOM   AND    VSAGK- ConHn^ed. 

evdonco  of  customs  at  ai,fe.ent  places  or  in  other  trades,  when  ad^ullo.  105- 

custorn  of  one  manor  not  admis.il.le  to  prove  custom  of  another,  105. 
rule  d.rteront  a.  to  usa.i,^.^  of  trade  in  England.  105,  106 
American  rule  less  liberal.  10(j   107 

"i::r;;;,;";orr "'"" '  '"■""'■  "■*"™  "■•' "  '■  ■'"'-"'  - «°«"- 

construction  of  common-law  custum-.  107-:iO. 
customs  construed  strictly.  107    ms. 

illustrations  of  this  rule,  108. 
usages  of  trade  construed  strictlv.  10-< 

"sag^  to  deliver  goods  to  mate  will  not  e.xcuse  delivery  to  deck-hand, 

»sai,re  of  passenger  conrtned  ^Iri.tly  to  passengers,  108. 
of  carrier  to  notify  consign.^  -it  -tnre   108 

''.tcL^'m'°  '""  '^"'''^'"^^  ^^'^^'^^^'^  ^^«-  -'  in^'^'de  certifying 
other  instances,  108,  lO:). 

usage  of  rail r„ad  to  allow  employees  to  ride  free  on  its  tnins  not  e. 

tended  to  paying  their  passage  on  other  roads   100 
usages  of  railroads  strictly  construed,  109. 
usages  cannot  act  retrospectively   100 

convict  j;;:;:!.  nSif '' '"  '^"■"^  °'''^^  -^^  ^^^^••^•^^  ="  ^'---y.  ^o.. 

usages  of  place  where  contract  is  drawn  govern  in  its  construction    110 
wiicn  one  party  a  foreigner,  111.  ""^cruciion,  no. 

when  contract  by  corresp<.ndence.  111. 
other  cases,  111. 

'^Xn.  nfli;.'-  ''"'''  -""'^^—  in  P.,  usages  of  market  in  V. 

pleadin^lS'""'  "^'"""'^  '"  '"^'  "^'■''''''  'y  '^  '^  -^^^  "2. 
general  usages  or  customs  need  not  be  pleaded,  112. 
but  alder  as  to  local  customs,  112. 

and  those  excusing  non-performance  of  legal  dutie.   112 
all  requisites  of  usage  must  be  averred,  1 12  ' 

but  averment  of  knowledge  unnocessarv,  when,  112 
when  usage  not  sufHcientlv  pleaded.  IT'  ' 

evidence  of  usage  admissible  in  ^,1  York  under  general  denial    lio 

power  to  certify  checks,  liO.'). 
proper  officer  to  receive  payments  or  deposit^  205 
transfer  of  shares  to  cashier  vests  legal  ti.le  in  bank,  20G. 
a  custom  on  the  part  -f  all  the  banks  in  a  particular  p  ace  to  doman.l  pav 


m 


'11 


510 


INDKX. 


CUSTOM  AND   V SAGE— Continued. 

usages  of  banks  us  to  (icniiiml  and  notice  govern,  200,  207. 
but  some  ilcniund  always  necessary,  207. 
discordant  decisions.  208. 
days  of  grace,  how  effected  by  u-uge.  20S. 

usage  that  paper  in  form  of  note  is  entitled  to  no  grace,  inadmii- 
sible,  208. 
duties  of  bank  as  collecting  agent.  200. 

may  be  delegated  to  notary  by  usage,  209. 

conflicting  decisions,  201). 
may  take  check  in  paj-nient  by  usngc.  210. 
paj'ment  by  bank  must  be  in  good  money,  210. 
inconsistent  usages  invalid,  210. 
payment  of  forged  chock  by  bank  i>  iit  its  jx-ril.  211. 

how  far  this  rule  affected  by  usage.  211.  212. 
right  of  liolders  of  one-half  of  bank-note,  212. 

usage  of  bank  not  to  pay  any  of  it^  bills  voluntarily  cut  in  two  invalid, 

212. 
80  of  custom  to  pay  only  half  the  amouut  on  the  presentation  of  each 
half,  213. 
bank  bona  fide  holder  of  check  by  usage.  213. 
purchaser  of  past-duo  negotiable  paper  takes  it  subject  to  equities,  214. 

usage  in  opposition  to  tins  rule  void,  214.  * 

note  may  be  negotiable  by  custom  of  a  particular  locality,  214, 
Commi>n  carriers,  rights  and  liabilities  of,  as  aiVctted  by  ou-:tom,  123,  214. 
definition  of  common  carrier  qualified  by  usage.  214. 
carrier  liable  as  such  for  all  property  which  by  (justora  he  undertakes  to 

carry,  215. 
not  liable  till  goods  are  "delivered"  to  him.  215. 

■what  a  good  delivery  determined  by  usage,  215-217. 
usage  to  deliver  to  mate,  216. 
to  leavti  goods  on  wharf,  216. 
to  deliver  to  driver  of  coach,  216. 

delivery  of  baggage  at  depot  without  n'nice  to  co'ipany  good  by 
( ustoni,  217. 
usage  nuist  be  strictly  followed,  217,  218. 
complete  delivery  not  affected  by  a  contrary  usage,  218-220. 

actual  delivery  of  goods  to  railroad  not  affected  by  usage  to  fiiot 

sign  bills  of  lading,  218. 
so  of  usage  not  to  consider  baggage  as  delivered  until  "checked," 
220. 
usage  cannot  prevail  against  express  directions,  228,  229. 
,  delivery  not  good  on  prohibited  days,  229. 

this  rule,  how  affected  by  usage,  229.  230. 
if  by  usage  consignee  provide  appliances  for  ilelivery,  carrier  not  liable  for 

injuries  received  therein,  231. 
usage  may  require  a  personal  delivery,  231. 
a  complete  delivery  not  affected  by  a  different  usage.  231. 
express  companies  required  by  law  to  make  personal  delivery,  231. 
usage  not  to  make  personal  delivery  rejected,  232. 
but  allowed  in  some  cases,  233. 

these  latter  cases  criticised,  233-235. 


INDKX. 


511 


;race,  inadmif- 


mot  liable  for 


CUSTOM    AND    USAGE -f ■„(.„„,,. 

liabihtios  of  conniH-tin-  carricis,  2:i5  ";J(J 
carrre,-s  chur..H  i„  .bsonco  of  a:„.e,M;,:nt'llx,.,I  hv  „sa«e   23U 
freifjht  „„t  o.r,H.,l  „uy  l,.-  r„c„v.,n.d  l.a.k.  2;i7 
contrary  ii-m:,'(.s  void,  U'.-]?.  2J8 
liiil.ility  for  pro|),.,ty  while  in  transit    •'•>1 

custom  that -sLippor  ma^ ntroi  pn,;,.,.,v  .x.,  .o,s  carrier  "oj 

conflictini,' decisions,  221.  ■>  ^"'ner,  «.i. 

currier  hy  water  nnnt  st-.ro  -ood.'o,,  d....],   ■'•>! 
this  rule  altered  by  usairo ;  illustratiuMrV'l 

"S;e;;:s;:s  "^'"'^  "^  "■'^^"-  '^^^  ^-'^  '-j--^  ^y  ^-.aot  with 

liab^Hty  of  carrier  continue,  until  he  has  made  a  delivery  of  th.  p,.„p.,,y. 

the  limits  of  this  rule  obtained  by  evidence  of  usa^e  ooo-oo. 
foruK^ry  personal  delivery  was  required  .>f  carrier    .■.;" 
but  usa.ires  of  trade  have  modilh-d  this   0.7-, 

carrier  recmred  I'v  huv  to  ^ive  notice  of  a;;;;d  „f  .oods    >■>->  -..v 
this  rule  altered  bv  usa<re   '>"(;  "         '  ""  '  "  '• 

Where  the  defendants,  tvlio'Ivere  common  carriers  on   f  ul-c  r-i 

-lie— -— ^^^^ 
=::::-r:n::;:- ^^^ 

of  money,    when    intrusted    to    them    to   the   wlc^:  '""" 

earner  ha.  „„l,v  ,,  p„,ic„l„  |i„„  „„  ,.„„„,  f„  „,  „ 

but  go  ,cr„l  l,„„  ,„„,.  b,  „i,„„  ,,,,„  ,,,  238-- lA*" 

c.rr«rB,v,„s  oredit  f„  ch,,r,,,,  l,„„  l.islfen,  2«. 

but  usai^'e  may  allow  this,  242. 
bills  of  ladinjr  construed  by  usa-e,'242. 

usage  must  be  uniform,  242""  ' 

carriers'  liability  cannot  be""restricted  by  usa^^e  242 

requisite  of  corporate  seal  altered  bv  us.^^.  "43  ^  '        '  ^''"^^^^ 

powers  of  officers  of  corporations  aft'ected^by^usage  244  245 

3r:a^i^-s:tnrr  r  ^ ' "'  '"^'^  -  -— 


512 


IXDRX. 


CUSTOM   AND    U^\(iK—C„nHnue'l. 

insurance  company  liiible  on  policy  executoJ  in  mode  difforent  from 

that  prescribed  by  eharter,  246. 
on  ni»reoment  signed  by  agent,  245,  246. 
on  parol  contract,  245. 
and  on  bill  of  exchange,  245. 

bank,  on  certificate  of  deposit  signed  only  by  pre?ident,  246. 
on  contract  for  services,  245, 
on  bill  of  exchange  indorsed  by  cashier,  245. 
requisite  notice  of  transfer  of  shares  waived  by  usage,  246. 
80  of  consent  of  directors  to  transfer,  24t). 
corporation  has  no  lien  on  shares  of  stockholder  for  indebtedness  to  it,  246. 

but  may  by  usage,  247. 
transfer  of  certificates  by  usage,  248. 

notice  to  stockholders  published  in  newspaper  valid  by  custom,  248, 
usages  in  the  law  of  insurance,  148,  248-267. 
Mr.  Justice  Hulleii's  opinion,  248. 

similar  remarks  as  to  the  power  of  usage  made  in  other  cases,  243. 
these  views  criticised,  248,  249. 
the  correct  rule  stated,  240. 
Mr.  Arnould's  four  rules,  250. 
usages  in  marine  insurance,  250. 

every  general  usage  prima  facie  part  of  the  policy,  241, 
commencement  and  end  of  risk,  252. 
arrival  and  delivery,  253. 

evidence  that  it  is  the  usage  of  the  carrying  trade  for  one  boat  on  a  voy- 
age to  stop  and  aid  another  boat  in  distress  is  competent  to  show  that 
such  is  not  a  deviation.     Walsh  v.  Homer,  160. 
deviation  by  boat  leaving  course,  waived  by  usage,  254. 

except  where  policy  contains  positive  directions,  254. 
doctrine  of  general  average  as  affected  by  usage,  255. 
policy  covers  such  goods  as  are  considered  covered  by  usage,  258. 
apportionment  of  premium  not  allowed  where  risk  is  entire,  256. 
this  rule  different  by  usage,  250. 
inconsistent  rulings,  250,  257, 
other  instances  of  usages  of  marine  insurance,  257. 
usages  in  lire  insurance,  258. 

contracts  include  all  usages  of  the  particular  business  ins^ared,  258. 
in  a  policy  of  fire  insurance  upon  printing  and  book  materials  in  a 
building,  privileged  for  a  printing-office  and  bindery,  there  was  a  con- 
dition exempting  the  insurer  from  liability  for  any  loss  occasioned  by 
camphene.    The  property  insured  was  destroyed  by  a  fire  caused  by 
a  workman  accidentally  dropping  a  lighted  paper  into  an  open  jar  of 
camphene,  which  was  kept  in  the  building  for  use  in  the  business.     In 
an  action  on  the  policy,  the  jury  having  found  that  when  the  policy 
was  effected  it  was  the  general  and  established  custom  among  printers 
to  use  camphene  in  the  printing  of  books,  and  that  its  use  was  not 
only  advantageous,  but  necessary :  held,  that  the  exemption  extended 
only  to  a  loss  occasioned  by  the  use  of  oamphano  for  purposes  other 
than  that  of  printing.    Harper  v.  City  Ina.  Co,  148. 
customary  incidents  of  business  insured  —  illustratioiu*,  258-260. 
what  is  an  increase  of  risk  may  be  determined  by  usage,  262. 


IMJKX. 


513 


different  from 


CL\sT(,.M    AND    l-^\GK- Continued. 

ctmn:,'.-s  in  ndjoiniiii,'  premises,  J(i3. 

anu,unt  of  loss:  u.ai,.^  as  to  stock  kept,  admissible  to  determir.o   -M 
pHynient  of  losses  by  nn.tuui  ..ompanies.  usa.^os  as  to   •'.;.  ' 

reinsurance:  contract  of,  not  affected  bv  usaL'o   "(55     '  "     ' 
usn-es  in  life  insurance,  I'tju. 

usage  to  eonsi.ler  insurance  n,ade.  though  prenmuu  not  paid.  2^!.-. 
usa.e  ot  c..„:pany  to  allow  days  of  grace  for  payn.ent  of  pr -n,,,,',   T,:. 
iiiconsisu-ni  rulings.  l!(i(;,  '       ''""•-"•'• 

define'''  r  7'  '."*  "*l'"i^''it>'«  in  contradiction  of  policv,  2.;.;.  2lJ7. 
defence  oldrui.'venness  not  sustainable  by  reputation  2»i7 

"r :;!;:::;:  ;;;^::  !:;r  '•--  ^^^^'-^  -  ^^-^^  '^  -  reg .d .. 

<.iis;..ni,s  l)etween  landlord  and  tenant.  2()7-'>76 

"t ':::^;;:i^r',:i:^'  ^^'"^"^  "-'"^^^  "«~^  ^o  act  according  to  oust 

>.sag.-  .nay  show  on  what  property  and  to  what  extent  rent  is  ..olloctable  ST 
at    onnnon  law   tenant  for  years  not  entitled  to  the  wavgoing  cro  ,  t" 
Hcu.tom  that  a  tenant,  whether  of  parol  or  deed,  shall   iTave    ho  w/.v- 

S;iZ' r^ '''  ^^^""'^"  "^  '"^ '-  '^  '^-'-  ^^'-"""-  -v. 

this  custom  recognized  in  America.  208. 
except  in  Virginia  and  Canada.  2iJ'.i. 
other  customs  between  landlord  and  tenant,  2Gf»  "^TO 

custom  requiring  lessor  to  clean  leased  house  before  lessee  enter.   VO 
or  proprietors  of  common  stairw.y  to  use  walls  for  si-n..   -  .     ' ' 
tor  adjoming  owners  to  pay  expense  of  partition  fences';  27()" 
or  common  walls,  270. 

payn.cnt  of  expense  of  conveyances  ...gulatcd  by  custom,  270 
customs  as  to  term  of  tenancy,  270. 
explaining  terms  of  lease.  271. 
what  are  fixtures,  determined  bv  custom,  271,  2?> 

except  where  parties  have  exprPsslv'c.i.t'ract'ed    •>72 
customs  not  admissible  to  contradict  lease.  272. 
when  lease  not  inconsistent  with  custom,  27"i-~>7(; 
customs  between  master  and  servant,  employer  and  employee,  276-279 
as  to  terms  and  conditions  of  service,  276.  ' 

may  show  length  of  hiring,  276. 

in  an  action  for  wrongfully  dismissing  the  editor  of  a  newspaper  the 
dec  arat.on  stated  that  he  was  engaged  for  a  vear.     There  was  no  dire 

show  that  .t  was  customary  for  editors  of  newspapers  to  be  enga^edl" 

as  to  privilege  of  journeyn.en  to  work  for  themselves  ..ertain  iu.urs   2" 
of  business  houses  to  furnish  each  other's  clerks  with  ^oods  '>T  ' 

as  to  proper  perlormance  of  service,  277.  "       ''      '" 

33 


514 


IMUCX. 


CUSTOM   AND    Vf^MiK—Coufinue'l. 

usage  thftt  priiitur  of  book  cniinot  print  copies  for  himseli".  -77. 

thnt  employment  of  urcliilcct  to  miike  pliins  iji  vea  him  8upi.riiitendence  of 

buildinj^,  277. 
thiit  iitemry  writer  may  employ  us-sistants,  •.i77. 
U  to  wufjcs  and  oompenstitior,  278. 

usui;»!s  as  to  mode  of  piiyini;  seiimcn,  27M. 

charges  of  veterinary  siiru;eons,  278. 

right  of  oommisnioii  merciuintH  to  commission,  278, 

ciinrges  of  professioim!  men,  278. 

of  printer  of  books,  278. 

of  pniprit'tor  of  newspaper  to  charge  for  advertisement  until  ooiintor- 

inanded,  278. 
othiM-  cases,  278,  279. 
contract  not  wholly  performed;  quantum  meruit  may  be  allowed  by  u-;;i.,'e, 
279. 
customs  in  the  law  of  partnership,  178,  279-284. 

partner  may  bind  tirtn  by  act  within  usual  scope  of  business,  279,  280. 

it  is  the  custom  on  the  Abibaina  llivi't-  for  the  proprietors  of  steamboats 
to  purchase  salt  at  Mobile,  to  be  carried  up  the  river  and  sold.  Hi  Id, 
that  in  the  absence  of  a  contrary  >ti|)ulation  in  a  partncr-ihip  agree- 
ment made  for  the  purpose  of  running  a  st(;aniboat  on  that  river,  the 
tlrm  would  be  liable  foi  salt  purchased  by  a  partner  at  Mobile  for  tran-- 
portation  and  sale  on  the  boat.  Wnrinf/  v.  Grady.  178,  231. 
usage  as  to  name  of  firm,  282. 
common  report  cannot  prove  existence  of  parlmTshi]).  2S2. 

nor  dissolution,  282. 
usage  may  establish  partnership  as  to  third  parties.  2S;5. 
as  by  issuing  joint  bills  and  occupying;-  same  store.  284. 
or  advertising  or  distributing  Ivuid-bills  in  lirni  naiin',  284. 
or  marking  merchandise,  28'-. 
usage  in  the  law  of  principal  and  agent,  281. 

agency  must  be  executed  in  accordance  with  usage.  2^4.  28) 
authority  of  agent  governed  by  usage,  '2^>.  2H7. 

T.,  a  factor,  having  goods  consigned  to  him  by  G.,  sold  them  on  three 
months'  credit,  taking  in  payment  the  purchaser's  promissory  note  to 
himself,  but  the  purchaser,  before  the  maturity  of  the  note,  became 
bankrupt.     In  an  action  by  G.  against  T.  for  the  value  of  the  goods 
sold:  held,  that  evidence  that  he  had  acted  accordin'j:  to  the  custom 
ortlio  phice  was  admissible,  and  would  discharge  him  iVoni  liability, 
Goodcuow  V.  Tyler,  180. 
oth.'r  illustrations,  28i;,  287. 
usages  of  tne  stock  exchange,  287. 
agent's  authority  cannot  be  delegated.  28 

unless  authorized  by  custom,  28ii. 
factor  has  no  power  to  sell  on  credit,  289,  290. 

this  rule  changed  by  usage,  290. 
factor  has  no  power  to  pledge  goods,  290. 
but  may  by  usage,  290. 

conflicting  decisions,  290. 
where  usage  requires,  agent  must  insure  g"ols,  291. 
payment  to  agent  as  atfected  by  usage,  292. 


IM)K.\. 


515 


until  coiinter- 


iwed  by  ii-::i:;o, 


•100. 


CUST«JM  AND   ViiMiR- Continued. 
set-ort;  2!  (2,  2(tH. 
usage  muv  settle  ,ige„f  s  c-,.,„pensHtion.  ^n^ 

illustnitions,  29-i. 
protits  rnado  by  agont  belong  to  principal,  -Jl. 

inconsistent  iisiige  vnid,  2!»4 
age.it  can.iot  act  for  ve,Kl„r  an.]  "vendee,  2'J4. 

inconsistent  usages  void,  2',)o. 

other  cases.  2!tt),  297. 
usage  cannot  excuse  disregard  of  instructions.  207 

Illustrations  of  this  prindpii.,  2'»S-.;00 
agent  not  personally  bound  o„  ...uract  n.adc  f,„.  pHncip., 

Dut  1.  ly  be  bv  usage,  ;{0I  ^ 

"^'tcon'-'f  ?'"'"  "^  """  "'"'"°  '^  P«"«"""^V  'i"l>'»-N    •^•-. 
inconsistent  usage  void,  :!02. 

attorney  and  client,  «0.'{. 

attorney  may  charge  tern,  fee  bv  usage,  .103 
or  retainers.  ;i08 

u..geso;t:;-.:;^^::r:;:^;;s:3:?^^-----=^ 

%:;;^!'"s:i:in;:;;;'"::::'-  ^^-  f--^-  - « certain  pnce  per 
L  wharflng::!;::::  e  • : :  trtd  •  ;;r7'  't'^  '-  --'-^y 

When  the  cotton  was  delive  ed    it  w .  "   'T      "' ''•^"  l^"""^^^- 

amount  to  onlv  rj -.o:,    '    ,  T       4  "" ''^^  ^•'  ^^^  """^  '"^'""'^  ^- 

or  the  latter  weight  bur::^^]  t  ^^Z "Lirul^n '^  fV"  ^^ 
received.     In  a  suit  bv  B.  against   \   forthln-  ^^  '''*'^  ""'""">' 

according  to  the  custom  o      1^       i  ditterence.  ,t  was  proved  that. 

ingerbe^,reirn.     HU,     to^  an;;  H '""•";"  """'"^  ^^  ^'^^  ^''-f- 
entered   in  book,   ke        hi  '^'' '''^'^^'^  """•lo-d   on   the  ba,.  „„d 

Without  anv.;ipulat    n  to  th  !    T'^T"'  ''"'^  "'""  '^  ^='"^  -''^  -'^^ 

upon  the i^sis^f  t^::;::: ;,;;;::::-;;,,:- "tjft;'; ----^ 

by  the  custom,  and  that  1>>.  was  entiU.i  ,..  rocve  .     V'l:    ,:';  V*"'"""'^ 

Other  illustrations,  ;^04,  yOo. 
terms  of  sale,  805. 
price-credit,  805. 
warranties  on  sales,  306-108 

were  sea-damaged  o-To  "l  fno?'  ''"':  '"  ^^'^  ^^talogue  if  the^ 
are  supposed  to  be  sou  d  tie  1  f  ^^'  «  '""^  "'^  to  their  qualitv.  theV 
damage"  pimento  wi  out  v*f  "^"'"'^  ^''  '^^'  "  quantitv  of  sea- 
purclfased'by  the  pi  n  ft  'IZ  ulL  th'  "^'""^  '^  ""'^'^'°"'  ''''^^'^  -'« 
goods  as  and  for  goo  L   hat  were  ^o  ^  ""'  '.'^"""''"^  ^"  '^  '^"'^  "''^^'^ 

for  the  fraud.  J^nes.  Z^7e:,  ill  ^^^'^^"^"S^'^'  ^^^  ^hat  an  action  lay 
conflicting  cases,  800  -;!08. 

U-iage  on  sales  by  sample.  808. 

on  sales  by  manufacturer,  809. 

pledgeor  and  pledgee,  310. 

rules  of  law  as  to.  not  affected  by  contrary  custom  310 
sales  by  auction,  310,  311.  ^  custom,  310. 


510 


INDKX. 


CUSTOM   AND    I'HMiK  — Continued. 

purchaser  wishing  to  rescind  must  rescind  entire  contract,  311. 

contrary  usage  valid,  311,  313. 
delivery  of  goods  and  passing  of  title,  313. 
how  affected  by  usage,  313, 

where  a  custom  exists  in  a  certain  business  for  the  buyer  to  leave 
goods  bought  by  liim  in  the  hands  of  the  seller,  and  it  is  so  noto- 
rious as  to  be  practically  known  to  all  persons  dealing  with  the 
snller  in  his  business,  goods  so  left  in  the  hands  of  the  seller  for  a 
tine  not  longer  than  is  clearly  within  the  custom  do  not,  on  the 
bankruptcy  of  the  seller,  pass  to  his  assignee  under  the  Bankruptcy 
Act.  PrieHtley  v.  Pratt,  201. 
other  illustrations,  314,  31'). 
payment  may  be  made  according  to  usage,  315. 

ilhistralion.s,  Jilt), 
where  there  is  a  general  usage  in  any  particular  trade  or  business  to  charge 
and  allow  interest,  parties  having  knowledge  of  the  usage  are  deemed  to 
contract  with  releronce  to  it.  Estei'ly  v.  Cole,  1'.I8. 
although  the  law  does  not  in  general  give  interest  upon  an  open  running 
account  for  goods  sold,  yet  an  agreement  to  pay  interest  may  be  inferred 
from  a  uniform  practice  of  the  creditor  to  charge  interest,  known  to  the 
customer.     Ibid. 

other  in,  tances,  316,  318. 
negligence  as  affected  by  custom,  318-329. 

what  is  diligence,  to  be  judged  by  the  habits  of  tlie  country,  318.  310. 

carrier  must  take  customary  care  of  property.  :!-0. 

custom  for  consignee  to  furnish  means  for  delivery  may  oxousl'  '.'unier,  321, 

322. 
other  eases,  322. 

negligence  in  other  bailments  may  be  judged  by  usage,  323,  324. 
as  affecting  the  contributory  negligence  of  a  s  -rvant,  321-32S. 
customs  to  excuse  negligence  rejected,  328,  329. 
evrdence  of  custom  on  questions  of  nuisance,  330. 
on  question  of  fraud,  usage  relevant,  330. 

but  custom  cannot  establish  a  fraud,  3.30.  , 

proper  use  of  public  or  private  way  depiMids  on  custom,  331. 
case  of  entering  on  another's  lands,  332. 
or  letting  cattle  run,  332. 

proper  use  of  watercourse  depends  on  custom,  332. 
offices  and  officers,  333. 

usages  ma}'  prescribe  orticei''s  duties,  powers,  and  compenootio'i,  Kbo. 
evidence  of  usage  on  prosecution  foi'  disturbing  worship,  o;io. 

for  carrying  concealed  weapons,  333. 
parol  evidence  inadmissible  to  vary  a  written  contract,  oG4. 
but  it  may  explain  an  ambiguity,  364. 
or  show  a  collateral  agreement,  3'i4. 
or  show  forgery,  or  I'raud,  or  duress,  366. 
other  exceptions,  3()5. 
admissibility  of  usage  to  affect  written  contracts,  365. 
views  of  the  text- writers  and  judges,  366. 
usage  may  explain  technical  or  unintelligible  terms,  367. 
may  explain  even  unambiguous  words  if  used  in  a  peculiar  modj,  567 


I.NDKX. 


517 


11. 


e  buyer  to  leave 
ind  it  is  so  nolo- 
dealing  with  tliu 
)f  the  seller  for  ti 
n  do  not,  on  the 
rthe  Banliruptcy 


usiness  to  charge 
e  are  deemed  to 

in  open  running 
may  be  inferred 
it,  Icnowii  to  the 


,  318.  810. 

L'U:iL'  '.'urrier,  321, 


324. 


;io'i,  8bo. 


nod  J,  S')? 


CUSTOM  AND   VSAGK- r,,,nn.ed 

pa.vin,  for  the,.  C^  p  rthou  ■  ■  1     7"  '"  """""'  ^'^''''^-  ''"^  '--• 
lessor  for  refusi„..  to  nav  for  ,  f  •'  """^  """"  ^•^'  '^'^  '«^^««  "«'''-'  the 

that  parol  evideno    rf  l^  fi^t  t  T'  ".'"' 7'' "^  ^'^  ^"'"  =  ''^'' 
countrv  where  the  Iohso   w      ^  /    .  '  '*'"'  ^"^  '^''  ""^^""^  "'^  tho 

illustrations,  370. 

incidents  added  bv  usao-n  cannnf  n  f  ,vr  u 

:    .1       L  »"  ^"""ot  evt;ib]ish  a  contract  37n 

public  buildin  '  ff^^-od  rr;r"H ■'';'"•■  ''"''"^  ''''"''''  '"  ^^-^t  a 
an  architect,  wa^^rde d  o  o  oV  I'  ■^'- ''""  "'''  ^"^'^-  '"<■•  '^•• 
award  should  not  bo  CO      d'r  P'"'''   ^'''''  ""''^°  ^^at  "the 

«aid  plan,,  „,  to  J^^^om\^!"T7  '*  P"'"-^"'-'«  ^^-^  -"-•'"• 
buildin,.  should  be  er  et      .   ,nd^^  ''''^'  '""^  "'""'^  ''"'  ^"''' 

paid  to^bi,„.  Subs;;;:  ,v,'T  tiz'^j'T'-'  f-'"'^  -'- 

plan,  subject  to  conditions.  "  //'w    ha  ',       ,  ".      "'  "^^"P'"^  ^'^ 

act  of  the  officers  and  did  not  \        ''e^olufon  was  a  voluntarv 

T.  ^^^-A-.;,'rt;n:i:zt^;r;s.er^'"^^:r-' 

of  a  u^uiTo  and  custom  .,,.„>  u-.  'S'li'i^t  the  officers,  evidence 

cial  c,,n  ract  L?  Z,  'f  ''"''Tu  ''"'  '"  ''''  '^^^"^"^^  ^^  "  «P"- 
belon,.stothea  clZt  r  ■","  ''^^  "-truction  of  a  buiidh,, 
for  pbms  are  o^  d  he  p  ns  ^JV;"  ''''''''■  '"'''  ''-''  ^^^^^  P-^^ 
to  then.,  and  ifsubseo  iS     ,      /,'  '"'''^''"'  '^^"'"P^titors  beion.. 

are  always  paid  tl^'S^^  'r*;^  ^^  ^'^^  "^Z  '"  '''''  ^^'  ^""^>- 
.    eluded.     7.L,  .  CU,  :j'aZ^  ^  "''"  """^  '"''  ''''^''^>'  -" 

parties  differing  as  to  usage,  does  not  destroy  contract  371 

ma,ee  not  admissible  to  supply  disputed  terms?3n 

usaftri  to  e.xplain  contracts  of  sale  37"-38" 

q-^ity^^d  description  of  good;  ;.o;;tracted   .,r  ascertained  by   ...,e. 

"horn  chains"  in  agreement  to  manufacture,  372 
"on  foot  higli "  in  contract  for  trees,  :;7-' 
other  instances,  372-375. 

{See  Words  and  Piikase.s  \ 
quantity  and  price  ascertained  bv  usage,  37r,-:i78 
"crop  of  flax  "  in  contract,  375. 
"barrel"  in  sale  of  oil,  37(i. 
"one  thousand  sliingles  "  in  contract,  376 
other  cases,  377-381. 

(See  WORD.S   ANI.  PriRASES.) 

contradictory  decisions;  37!),  380. 
u.siigo  to  add  incidents  to  contract*  of  n,-;'.,.;,    i 

defendants,  brokers,  boin!  tpt'd  b^'s  t"  "^"7'  '''-'''• 
as  follows:  ..Sold  this  da^I^  ^  ^.^  '"  P;!^:  j^  f '  «'«-^  «  "o.e 
principals,  ten  ton«  of  linseed  oil  "  ,  c    «  '  ''"""^'  ^'°^'''''  "to  o..r 


J 


Ola 


iM)i:x. 


CUSTOM   AND  UGAQE  —  Continued. 

fwita  did  not  disclose  the  name  of  their  principal,  S.,  who  became  insol- 
vent and  did  not  accept  the  oil.     Plaintiff  then  sued  defendant  for 
not  accepting  tlie  oil,  laying  the  sale  as  by  himself  to  defendants. 
Defendants  denied  the  contract.     On  the  trial,  plaintiff  proved  a  cus- 
tom in  the  trade  that  when  a  broker  purchased  without  disclosing  the 
name  of  his  princip.-il,  he  was  liable  to  be  looked  to  as  purchaser-. 
Held,  that  evidence  of  the  custom  was  admissible,  as  not  contradicting 
the  written  instrument,  but  explaining  its  terms  or  adding  a  tiiiiily 
implied  incident,  and  that  the  action  lay.     Hmnfrey  v.  Dale,  i34J. 
otlier  cases  382-o8i5. 
to  explain  and  add  incidents  to  contracts  of  suretyship,  (j8*3. 
and  Mijji'eements  between  attorney  and  client,  386. 
other  cases,  386. 

{See  WoKDS  axd  Phrases.) 
usage  may  show  whether  written  contract  is  a  bailment  or  sale,  387. 
usage  admissible  to  explain  deeds,  ;'i87-389. 
(P<ii-  \v  I'ds  and  phrases  in  deeds  explained  by  usage.     N'ee  Words  and  Phrasks.) 
sporting  usages,  :-!80,  -VM. 

that  in  agreement  for  horse  race  "across  a  country"  does  not  all^nv 

riders  to  go  through  gates,  380. 
custom  of  sportsmen  that  when  either  party  relinquishes  deposit,  bet  \i 
at  an  end  admissible,  ;>',iO. 
mining  agreement  explained  by  usage,  390. 
meaning  of  "levc;!"  in  lease,   390. 
customs  of  mining,  390,  note, 
contract  for  labor  and  materials  explained  by  usage,  390-394. 

a  contract  for  the  excavation  of  lots  in  a  city,  so  as  to  make  them  con- 
form to  a  certain  plan,  was  silent  as  to  whom  should  belong  the  sand 
or  other  material  taken  therefrom,  A  custom  existed,  long  estab- 
lished and  notorious,  that  it  went  to  the  excavator,  and  not  to  the 
owner  of  the  lots.  Held,  that  evidence  of  the  custom  was  admissible 
to  explain  the  contract  of  the  parlies.  Cooper  v.  Kane,  339. 
mode  of  measuring  work  estimated  by  custom,  391,  392. 
other  instances,  393,  394. 

(See  also  Words  and  Phrases.) 
contracts  for  personal  service  explainable  by  usage,  394-398. 

as  that  servants  are  entitled  to  holiday's  although  covenanting  to  "lose 

no  time,"  394. 
or  that  actress  is  only  entitled  to  pay  during  season,  though  engaged  for 

"  three  years,"  394. 
or  that  servant  is  entitled  to  notice  of  dismissal  where  contract  is  in 

writing,  394-396. 
what  is  meant  by  particular  description  of  trade  explainable  bv  usag", 
394,  397. 
as  "cabinet   and  mahogany  door-maker"  in  agreement  to  teach 

that  trade,  394. 
to  show  duties  of  "salesman,"  397. 
of  "lace  buyer,"  397. 

what  is  included  in  "ship  carpenter's"  work,  397. 
what  is  meant  by  "same  ground,"  397. 
what  is  expected  of  girl  engaged  as  "danseuse,"  397,  398. 


IXDKX. 


519 


CUSTOM   AND   ^J^XVrY.- Continued. 

usage  adMii.<3ible  to  explain  wills,  808-400. 

a  testator  gave  to  certain  devisees  "'all  my  back  l.,,,!"     w  / ;    .u 
parol  evidence  was  admissible  to  de.i-n  7  T  ^'''^'  *''"' 

in.  that  certain  lands  own^^^l    .   w:  r.^^.rT"^'  ^  'V''^^' 
..pUon  .  bin.  and  a.ong  ..    .,.:^;:;r^^^^ 

to  ex[.laiM  devisee  by  evidence  of  usa-e  898 

testator's  habit  of  using  particular  term  in  particular  sense   308  300 
illustrations.  398-400.  "-"»»'.  *5,»8,  djy. 

custom  to  transfer  land  by  death-bed  gift  without  will  invalid    400 

extent  ot  the  rule,  401. 

words  explained  by  usage  in  marine  polieios,  401-400. 

{See  also  Wouds  a.vd  Piika^k-  ^ 
geographical  terms  explained  bv  usMge,  40;i-105 
Illustrations,  404,  405. 

(See  also  Words  and  Piikases  ) 
words  explained  by  usage  in  fire-policies.  40o-408. 

(See  also  Words  avd  I'iirasks  ) 

words  and  piirases  explained  by  usage,  408-411. 

,„„      .      .     .    .,,         ^''''««"'^*'"  Words  A.VD  PiiiiAsKs.) 
usage  H.a.nuss.ble  when  repugnant  to  expr-.s  .ontnu.     434 

contra.i.ctory  expressions  by  the  courts,  4:)4   43o 
the  true  rule  stated,  435, 

contracts  between  carrier  and  customer,  435 

oaimot  be  contradicted  by  evidence' of  usage  435  438 
contracts  of  insurance.  438-441.  ^     43.J-438. 

cannot  be  contradicted  bv  usage,  438-441 

£»*««,.  aI,,„:  alii  °  """■""•   ""•■■'""  '• «».'"-' 

nsreo.ii,.,iii  b«»een  Inndlopd  ,„,<|  tenaiii  441 

o.,M  ,;„■  ti,„„  certain  cannot  b„  „vaded  bv  cu.t„m  m 

Other  instances,  441. 
contracts  of  hiring,  441. 

il-cxpress,  cannot  be  altered  by  contradictory  customs  441 
contracts  for  work  and  labor,  441-443   452  "«'«ms,  441. 

forthc  price:  /..M,  tbat  cvi.l™,...     ,.;,',        ""VT        """'""  "• 

or  h.vi„,  ,an„.„u  ..d  „„  .,,„  r  ::;r;,;;:s'i";;;;7:s" 


i 


520 


iM>i;\. 


.JUSTOM    AND    U^MiK— Conf inner f. 

liny  (ilteration.s  tliJit  iniijht  be  iiopossarv  to  mnko  thorn  fit,  was  inadinis- 
sihlo.  l>"C!Uiso  it  contradicted  the  terms  of  mi  express  contract,     lirumn 
V.  FiiHter,  417. 
other  cases,  441-443. 
priiicipiil  and  agent,  444,  445. 

I'xpnss  contracts  between,  cannot  be  contnidicted  by  usage,  444,  44). 
bankers  and  brokers;  hills  and  notes.  445. 

ciistoins  in  contradiction  to  conlruct  inachnissible,  44o.  44(1,  452. 
contracts  of  sale,  447. 

if  not  ambiguous,  camiot  be  altered  b\'  u«.ige,  448-452. 
criticism  of  some  cases,  448. 
express  agreement  between  innkeeper  and  gue.st  cannot  be  altered  by  custom, 
45:5. 
statutes  as  alTecteil  by  usages  and  customs,  453. 
usages  repugnant  to  statute  void,  45:^). 
words  deliiictl  by  act  ol'  Parliament,  454. 

contrary  usages  void,  454.  , 

(Sec  WOKDS   .\Nr)  PilKA.SES.) 

where  a   statute   declares    that  every  pound  of  butter  shall    weigh  sixf.Kfn 
ounces,  a  custom  that  every  pound  of  Imttcr  sold   in  a  purticular  li>wn 
shall  weigh  eighteen  ounces  is  bad.     SuhU  v.  Dnrell,  420. 
statutes  prescribing  ollicer's  duties  not  afTeclcd  by  usage,  455. 

illustrations.  455-458. 
statutes  prohibiting  usury  —  contrary  usages  void,  45*^. 
statutes  requiring  contracts  with  seaman  to  lie  in  writing — ■  ontrarv  usriire 

void,  458. 
statute   prohibiting  t'aiM'ier  ♦".-em   limiting  cominnn-law   liability  cannot  bo 

altered  by  usMgc,  451). 
statute  (lecliiring  violent  and  tumultuous  acts,  riot,  400. 

custom  ot"  the  couiitrv  void,  4tiO. 
statute  requiring  sales  of  licpior  to  be  for  cash,  460. 

custom  to  sell  at  thirty  days  illegal,  460. 
statute  allowing  days  of  grace  on  note,  4(iO. 

contrary  usage  void.  4i'>0. 
statute  requiring  assigiunent  by  writing,  460. 

custom  to  assign  by  delivery  void,  460. 
statutes  as  to  partition  fences  —  contrary  custom,  460. 
statute  prohibiting  work  on  Sunday,  460. 

custom  of  barbers  to  work  on  that  tlay  void,  460. 
statutes  as  to  watercourses — contrary  custom  void,  401. 
statute  requiring  safety-plugs  on  stt'am-hoilers,  461. 

cimtrary  custom  in  maiuifacturing  (!st;il)lislunent^  void,  461. 
statutory  exemptions  cannot  be  waived  by  usage,  46:2. 
statutes  may  he  construed  by  usage,  462-4i')5. 

municipal  charter  and  powers  as  atfecled  by  usage.  463. 
unlawful  expenditure  of  money  by  mimicipal  corporations  not  valid  by 
usage,  464. 
common-law  custom  not  inadmissible  because  in  conflict  with  legal  rules,  465. 
gavelkind  and  borough-lMiglish  examples  of  this,  465. 
usages  contrary  to  legal  rules  valid,  465. 

ntradictory  expressions  of  some  judges,  4(15^  466. 


IN'OKX. 


rrj] 


CUSTOM  AND    USAGR- Continued.  '~ 

banks  and  bunkin.-  usa.^es  against  legal  rulo.s  admitted,  4G7 

usages  ngumst  legal  rules  rejected,  467,  408 
commun  carriers-  usages  against  legal  rules  admitted,  4.i8 

usages  agauist  legal  rules  rejected,  409 
corporations -usages  against  legal  rules  admitted.  409 
insurance- usages  against  legal  rules  admitted,  4m 

usages  against  legal  rules  rejected  470 
landlord  and  tenant -customs  against  law  admitted   470 
contracts  for  personal  services  -<.u.stoM,s  agamst  law  adnmied   471 

customs  against  law  rejected,  471. 
partnership  -  customs  against  law  admitted.  471 
principal  and  agent-  usages  against  legal  ruLs  admitted   471 
asages  against  legal  rules  rejected,  471 

it  is  a  rule  of  law  that  an  agent  camuu  act  ..  such    lor  l.oth  vnl  r 
and  purchaser,  and  receive  payment  t;.r  ni.  s'X-t':' 
Then  lore,  a  custom  among  brokers  in  the  citv  of  Haltim.re  • 
n  exchanges  o    real  estate  they  are  entitled  to  a  com  1  Li   „■ 
two  and  a  half  per  cent  from  each  partv  on  the   v  «    the 

property  exchanged,  is  invalid.     Jimsin  v/vfark  m 
vendor  and  purchaser  _  usages  against  legal  rules  admitted,'  472* 

usages  against  legal  rules  rejected  4Tfi 
miscellaneous  usages  admitted  or  rejected  "because  contrary  to  ru 


■It 


of  1 


l\V. 


472. 

necessity  for  reviewing  the  contradictorv  ca«e.  47'; 

the  facts  and  opinion  of  the  judges  in  tliese  cases,  474-484 

the  above  oases  examined,  484,  485 

the  true  meaning  of  the  rule  that  a  'u^age  must  not  coaiuct  with  the  I..    Jm; 

CUSTOMS  OF  MERCHANTS,     (S.e  also  Vk.vboh  axu  Puk.h  .k.  ) 
customs  of  merchants  defined.  18.  ha.ski..) 

adopted  by  the  law-merchant,  thev  become  .i  norf  r.e  »i 

practice  „r. he  „,d  j„4-es.  in\wiv  ,:;z:,;r„"  !,?:':r';:: f"- . 

as  to  their  existence  and  effect,  L'O.  '"en.  bants 

general  custom  of  merchants  judicial 
local  customs  of  trade  defined,  :0 

customs  of  merchants  as  to  what  is  meant  by  "  borrowed  money  '   ,i 
habit  of  merchants  to  pay  debts  by  checks,  -67.  ^' 

customs  in  restraint  of  trade,  67. 


dly  recognized  by  the  coui'ts,  HO. 


i'EEDS, 

customary  covenants  in,  governed  bv  lex  ret  slfrr   112 

usage  admissible  to  explain  deeds,  387-389 
(For  words  and  phrases  in  deeds  explained  by  u'sage.    See  Wohds  ..o  Pu,.  v^k.  ) 
DEFINITIONS.  "iuuA  k^.) 

definition  of  customs,  15. 
of  general  custom,  15. 
of  particular  customs,  lo,  10,  26. 
of  usages  of  trade,  20,  20. 
of  custom  of  n  person.  20. 

DESCENT.     {See  Wii.l.s.) 


ill 


522 


INDEX. 


DKVIATION.    (.See  Insurance  Law.) 

DICTIONAllY, 

admissibility  of,  in  evidence,  102. 

E.Nri'LOYER  AND  EMPLOYKE.     {See  Master  and  Sekvant.) 

ENTKIES.     {See  Books  of  AnorNT.) 

ESTABLISHED.     (See  Ancient.) 

EVIDENCE.     (-See  PiiKsuMPTiox:  Witxkssks.  and  the  special  titles.) 

EXPIM'-.SS  COMPANY.     (See  Common  CARUiKiis 

E.XTHNT, 

iisMi^e  of  trade  which  has  no  limit  in  extent,  void,  ^i"). 

custom  cannot  attect  those  between  whom  tiierc  is  no  privity  of  contract.  06. 

custom  between  brewers  and  tavcrn-iteeper.s  cannot  uHect  distillers,  56. 
custom  cannot  atfcct  those  ii^norant  of  it,  o7,  08. 

custom  of  bank  cannot  bind  party  who  does  not  intend  to  be  brought  within  its 
operution,  ")7. 

custom  of  bank  does  not  affect  note  not  payable  there,  ''iS. 
^I.  &  \V.,  fruit-brokers  in  London,  beinj^  employed  by  V.  &.  O.,  morcVian*;  in 
London,  to  sell  for  them,  gave  them  the  following  contract  note,  iiddresr^ed  to 
F.  «&  1>. :   "  We  have  this  day  sold  for  your  account  to  our  principal     *     *    * 
tons  of  raisins.     M.  &  W.,  brokers."     The  principal   having  accepted  part  of 
the  raisins,  and  not  having  accepted  the  rest,  V.  it  1).  brought  an  action  on  the 
contract  against  M.  &  VV.,  and  sought  to  iiake  ihcm  persotnilly  liable  by  the 
custom  of  the  trade.     On  the  trial,  in  addition  to  evidence  of  a  custom  in  the 
London  fruit-trade  that  if  brokers  did  not  give  the  names  of  their  principals  in 
the  contract,  they  wore  held  personally  liable,  although  they  contracted  a^: 
brokers  for  a  principal,  they  offered  evidence  of  a  similar  custom  in  the  London 
colonial  marVet.     Held,  that  the  latter  was  also  admissible,  being  evidence  in  a 
similar  trade  in  the  same  place,  and  as  tending  to  corroborate  the  evidence  as 
to  the  existence  of  such  a  custom  in  the  fruit  trade.     Fleet  v.  Marion.  90. 
eviilence  of  customs  at  different  places  or  in  other  trades,  when  admissible,  10-5- 
107. 
custom  of  one  manor  not  admissible  to  prove  custom  of  another,  105. 
rule  different  as  to  usages  of  trade  in  England,  105,  lOG. 
American  rule  less  liberal,  lOlj,  107. 
when;  custom  in  one  place  is  proved,  uvideaco  that  it  is  different  in  another 
inadmissible,  107. 


FACTORS.    (See  Principal  and  Aoknt.) 

FENCES, 

statute  as  to  partition  fences;  contrary  usage  void,  4G0. 

KISIIING.     (Sre  KiVER.) 

t'lXTUllES.    (See  Landlord  and  Tenant.) 

FILU'D, 

on  question  of  fraud,  usage  relevant,  330. 
but  custom  cannot  establish  a  fraud,  o30. 


"ma 


IM>KX. 


523 


ought  withiii  its 


But  in  another 


GAMING.     {See  Sportiv,   Csakk.s.J 
GENERAL, 

a  common-law  cu.stoin  must  bo  i,'enerrtl,  39. 
illustrations,  40. 

the  rule  ot-  law  as  to  importin.^c  i"to  the  terms  of  a  tonanry  the  custom  of  the 
country  doos  not  adn.it  of  evhlenoe  of  the  usa.e  of  a  p  u-ticular  late  on  e 
property  c-t  a  particular  individual,  however  extensive  it  n,ay  be.      ^iV^ 

how  r.r  i^enerality  required  of  a  partioidar  custom   40 

ooMtrud.ction  to  say  that  a /Hu-Hcular  custom  must  bo  general  40 
gene,.al,^ty  only  material  as  attectin,,  the  question  of  knowledge  i.f  the  cus- 

usnge^nK.y  be  '^general,-  though  confined  to  a  particular  city.  town,  or  vil- 

instancos  of  inadmissible  usa!,'es  under  this  hc:id,  41. 
usaye  of  a  sini,'lc  house,  41. 
of  a  sin;,de  mill.  41. 
of  oidy  one  person.  41, 
of  one  railroad  oinpanv,  41. 
custom   in   New  Orlean's.   Cin..innati,  and  Loui-ville  does  not  provo  a 

J,'eneral  custom  on  the  Mississippi  Uiv-r  and  its  tributaries,  41. 
practice,  to  amount  to  a  usa-o,  must  be  the  mode,  41. 
puymcnt  of  loss  by  bank  in  an  unusual  case,  41.  ' 
parti,  ular  instances  of  dealin-s  in  one  or  two  banks   41 

'  lialj tr  ^"''^'"^""''""  '""^^  -''l^i'^y  '-  -  Pl-'e.  ""t  to  a  particula: 

usat^o  of  municipal  corporations  must  be  .eneral  an,on,r  like  towns  and 
cities,  and  not  local  in  one  place,  41, 

"  dl 'Tr'Tn-'  ;''""^^'''t^'''"^  ^-'^  -•  'Stopping  at  a  particular  port 

doc,  not  establish  a  usage  in  the  shipping  trade.  42, 
boat  putting  into  port  sonief.uae,,  but  not  «,sv«a.7v   4-' 

"In :::  7l;::';r ""  ^""'"""'^- '""-'  '>■  ^  '-^-  ^^^^  -'>■  -^'-^ 

^" -ao^l'i  '  "■"""  "  "  "'"  '"'"""'  "  '"  ■"  ^'"'■'^  ^-^  -^'  -^-blish  a 
that  U^wa^  .-  very  unusual  "  to  do  a  thing  does  not  show  a  usaye  not  to 


instances  of  usages  sustained  as  suttieientl 


m  prevailing  in  three  ditfuriMit  establishments,  44. 


custo 

custom  of  river  as  to  b 

custom  as 


y  general,  44, 


oomiiig  loirs,  4  I. 


to  negotiable  paijer  in  Iowa,  44. 


custom  of  ship-broker,  44. 

(rKXKlJAL  CUSTOMS, 

d-tined,  15. 

■AV'i  the  common  law,  16. 

founded  on  act  of  Parliament,  IG. 
CrEtKJKAPHV,     (.S-ce  Placbs.) 

HABIT,     {See  also  Accommodation  ITsaok,  or  Habit.1 
usage  of  only  one  person,  effect  of,  41. 


m 


524 


INDEX. 


H\R\T  —  ConHnued. 

the  habit  of  an  individual,  78-82. 

.examples  of  this  kind  of  evidence  received,  78. 
custom  of  party  as  to  giving  receipts,  7'.>. 
as  tn  giving  notice  of  additional  insurance,  70. 
as  to  signing  will,  79. 
custom  of  attorney  in  giving  directions  as  to  writs,  70. 

habits  of  other  attorneys  in  same  place  irrelev.mt.  SO. 
custom  of  railroad  agents  to  mark  cotton  received,  SO. 
custom  of  board  of  trade,  80. 
custom  of  bank  clerk  to  settle  books  daily,  80. 
of  owner  of  mill  to  give  receipt  for  grain,  HO. 
of  party  to  accept  drafts  only  in  writing,  81. 
of  bank  clerk  to  personally  notify  parties,  81. 
of  notary  as  to  mailing  notice,  81. 

party's  practice  may  explain  abbreviations  and  symbols  in  books,  81, 
examples  of  this  proof  rejected,  81,  82. 

custom  of  insurance  agent  to  enter  policy  in  book,  81. 
of  factor  to  enter  sales,  81. 

habit  of  justice  of  the  peace  to  read  over  bills  of  sale  to  signers.  81. 
to  deliver  executions  to  officer  making  attachment,  81. 
custom  does  not  obligate  mode  of  executing  contract,  82. 

oral  insurance  contract  good,  though  usually  in  writing,  82. 
entries  nuide  in  usual  course  of  business,  8"J-84. 
evidence  after  party's  death.  8_*. 

if  they  are  party's  books  of  account  kept  in  regular  course,  8:?. 
shingle  containing  minutes  of  lumbi'r  hewed  admissible,  '^■i. 
also  notched  stick  and  wooden  tallies.  83. 
memoranda  of  sawyers  on  boards,  83. 
scraps  of  paper,  84. 
tabular  forms,  84. 
single  sale,  though  of  more  than  one  article,  does  not  constitute  a  course  of 
business,  84. 
habit  of  testator  of  using  particular  word  in  particular  sense,  351,  398-400. 

HOMICIDE, 

custom  cannot  excuse,  62. 

H<  )RSE-RACE.     {See  Sporting  Usaoes.) 


INDULGENCE.     (See  Accommodatiox  Usaok.; 

INNKEEPERS. 

custom  oi  hotel  keepers  as  to  deposit  of  money  bj'  guests  in  safe,  34,  46. 
express  agreement  between  innkeeper  and  guest  cannot  be  altered  by  custom,  453. 

INSURANCE  LAW, 

particular  customs  not  known  to  insured,  inadmissible,  5-5. 

custom  to  charge  extra  premiums  on  unoccupied  dwelling-houses,  55. 
usage  to  require,  as  proof  of  death,  certificate  from  attending  physician  of 

deceased,  55. 
usage  for  insurer  to  receive  notico  of  increase  of  risk,  and  to  have  option  of 

continuing  or  annulling  policy,  55. 
cu-tom  that  term  "carpenter*,"  in  policy,  referred  to  the  employment  of 

carpenters  in  adding  to  buildings  insured,  55. 


I.NDKX. 


525 


dittVreiit  from  that 


LN><UKAN(!K    L  WW -^Continued.  " 

ci.^m  to  roie.t  applications  on  buildings  previously  flrod  by  an  incn.liary. 

custom  to  require  notice  of  additional  insurance  to  be  ^iven.  55 
this  case  open  to  criticism  on  other  grounds,  56,  note 

t:^  :::2,  tt'  "'^""^ "  -'-''  -"'-  "--^>  --  -  the  tin.  >„ 

custom  to  recjuire  applications  for  additional  insurance  to  be  in  writin.^  S', 
^..ago  to  construe  "standing  detached  -  as  meaning  that  si  ecr       f  ^^^ 

least  twenty-five  feet  from  external  exposure,  55  ^  "' 

usage  to  require  preliminary  survey  of  goods  damaged  bv  port-wardens  55 
u,age  as  to  mode  of  adjusting  losses,  50  ^^-irciens.  o-x 

particular  customs  not  known  to  insurer  also  inadmissible,  56 
cus  om  tor  watchman  at  factory  to  leave  on  Sundays,  50 
^'t'L:::;r:!;f  '''  ''™'^  '"'  ^-''^--berUmd  as  within  the  C.ilf  . 
un;eas(mable  u.aijes  of  insurance  companies,  73 

to  require  preliminary  survey  of  damaged  goods  bv  port-wardens   73 
to  pay  only  two-thirds  of  gross  freight  on  a  total  \oJ  73 
oral  insurance  contract  good,  though  usuallv  in  writing  82    ' 
HKurance  company  liable  on   policy  executed  in  mode 

prescribed  by  charter,  245. 
on  agreement  signed  by  agent,  245,  246. 
on  parol  contract,  245. 
and  on  bill  of  exchange,  245. 
usages  in  the  law  of  insurance,  148,  248-207. 
-Mr.  Justice  Bullek's  opinion,  248 

similar  remarks  as  to  the  power  of  usage  made  in  other  cases  248 
these  views  criticised,  248,  24!). 
tile  correct  rule  stated,  24!J. 
Mr.  Arxould's  four  rules,  250. 
usages  in  marine  insurance,  250. 

every  general  usage  prima  facie  part  of  the  poliov   ■•41 
commencement  and  end  of  risk,  252. 
arrival  and  deliverv,  259. 

"'a!e'r  lo'r  ''  \'  '■','  ""f  "'  '"  ""'•^^■'"«  ^'•••'''^  f-  »-  »>"'>t  on  a  vov- 

u  h   s  S  Tlj:^r      n'rf  "•  ^^'^^^^^^  '^  --"^^tent  to  show  th  . 
sucn  IS  not  a  deviation.      I(  aU,  v.  Hornej;  100 

deviation  by  boat  leaving  course,  waived  by  usage  '>54 

except  where  policy  contains  positive  directions,  254 
doctrine  of  general  average  as  affected  bv  usa-e  •>55 
policy  covers  sued,  goods  as  are  consider..d  cover'ed"  b;  usa^e  250 
apportionment  of  pre.nium  not  allowed  where  risk  is  entii^^;  " 
this  rule  different  by  usage,  256. 
inconsistent  rulings.  250.  257. 
other  instances  of  usages  of  marine  insurance  257 
usages  in  fire  insurance,  258. 

contracts  include  all  usages  of  the  particular  business  insured,  258. 
in  a  policy  of  hre  insurance  upon  printing  and  book  materials   in   -, 
building,  privileged  for  a  printing-office  and  binderv,  there  wa    a  c. 

camphene.    The  property  insured  was  destroyed  by  a  Are  caused  bv 


.'>2() 


INJ)K.\. 


INSUK ANCK   LA W  —  Continued. 

a  workman  iiioidentully  dropping  a  lighted  paper  into  an  open  jar  of 
cainphene,  which  was  kept  in  the  building  lor  use  in  the  business.  In 
nn  action  on  the  policy,  the  jury  hiiving  found  that  wlien  the  polity 
was  etl'i'ited  it  was  the  general  and  estal)lislied  rustoni  annong  printers 
to  use  caniphene  in  the  printing  of  books,  and  tliat  its  use  was  not 
only  advantageous,  but  necessary :  held,  that  the  exemption  extciidc'l 
only  to  a  loss  occasioned  by  the  use  of  campliene  for  purposes  other 
than  that  of  printing.  Harper  v.  City  Ins.  Co.  148. 
customary  incidents  of  business  insured  —  illustrations,  J')8-2(10. 
what  is  an  increase  of  risk  may  be  determined  by  usage,  -'12. 

does  not  include  usual  and  necessary  repairs  on  building,  'J62. 
changes  in  adjoining  premises,  203. 

amount  of  loss  —  usage  as  to  stock  kept,  admissible  to  determine,  'ICyi. 
payment  of  losses  by  mutual  companies,  usages  as  to,  2()4. 
reinsurance :  contract  of,  not  affected  by  usage,  *.2(i5. 
usages  in  life  insurance,  "ifio. 

usage  to  consider  insurance  m.ide,  though  premium  not  paid.  2f)5. 
usage  of  company  to  allow  days  of  grace  for  payment  of  premium.  '1  ■' 
inconsistent  rulings,  206. 

such  usage  not  admissible  in  contradiction  uf  poli(?v,  260,  267. 
defence  of  drunkenness  not  sustainable  by  reputation.  207. 
usage  to  require  proof  of  death  by  family  physician  not  admissible  if 

unknown  to  insured,  267. 
not  competent  to  show  that  person  addicted  to  spirits  is  not  regarded  as 

an  insurable  subject,  207. 
usage  admissible  tt)  explain  words  in  policies  of  insurance,  401. 
extent  of  the  rule,  401. 
words  explained  by  usage  in  marine  policies,  401-406. 

{See  also  Words  and  Phrases.) 
geographical  terms  explained  by  usage,  403-405, 
illustrations,  404,  405. 

(.See  also  Words  and  Phrases.) 
words  explained  by  usage  in  tire-policies,  405-408. 
(.See  also  Words  and  Phrases.) 
contracts  of  insurance  cannot  be  contradicted  by  usage.  438-441. 

in  an  action  of  a  policy  of  insurance  on  a  ship,  her  tackle,  apparel,  huat, 
and  other  furniture,  evidence  of  a  usage  that  boats  slung  on  the  "Ut- 
sido  of  the  ship,  on  the  quarter,  are  not  protected,  is  inadmissible  as 
contradicting  the  express  terms  of  the  contract.  Blackett  v.  Royal 
Exchange  Asstir.  Co.  413. 
insurance  —  usages  against  legal  rules  admitted,  469. 
usages  against  legal  rules  rejected,  470. 


INTEREST, 

custom  of  charging,  different  with  different  city  officers,  invalid,  37. 
custom  of  merchants  to  charge  interest,  52. 

must  be  known  to  customer  to  bind  him,  52. 
but  knowledge  may  be  implied  from  previous  dealings,  62. 
where  there  is  a  general  usage  in  any  particular  trade  or  business  to  charge  and 
allow  interest,  parties  having  knowledge  of  the  usage  are  deemed  to  contract 
with  reference  to  it.    Esterly  v.  Cole,  198. 


INDEX. 


INTEKKST-C'o//<m«erf. 

"' tlfoodsIo.Tm  ::"'  "  ^'^"""'  ^''■^'  '"^^^^'^  "P-  -  ••''-  ---^  account 

^tutut-s  prohibiting  usury -c.nlrary  u.suj,'0.s  void,  4.V<. 

INTKHPHKTATION.    (...  Coxsnavnox,  VVou..  ...,.  ,,,k.sk>., 
IRK  LAND, 

landlord  and  tenant  customs  in,  IS. 


<m;. 


JrnrcrAL  notice. 

general  .-ustoms  are  ju,li(.i,,llv  n..ti.-od   00 

""oi;:!  ;;:""""'  -tal„is..n.n;s  to  furnish  each  others' custon.r.  wi„ 

to  ilsh  in  private  ponds,  Uti. 

of  ciiurch  to  l<cep  a  record,  !1iJ. 

customs  of  brokers,  9ti. 

custom  of  iianldni,'  hr)urs,  <)t;. 

other  bunkinij  custom,  juijiciall v  noticed   flO 
particular  uaajres  and  customs  must"be  p-uved   'iJ; 

necessary  by  parol  evidence,  '.tO. 

particular  customs  of  ba.,ks  cannot  be  iu<liciallv  noti..,., 

nor  custom  of  city  as  to  -rading  street^,  97.       ' 

usages  of  another  State,  07. 

.H-DICIAL   OPINION  OF   IISAGE   AND  CUSTOM. 

ai..like  o<'  the  judges  to  extend  the  otti,.,.  of  a  usm-c-   -0  -'J 

Lord  ELI.0N-.S  opinion  that  they  had  been  exl^.uled  iar  enou.-l,    •'! 

similar  views  in  Hutton  v.  IVarren   in  tl„.  ,.,,  -,     f  ■     /  ''"°"-"-  "'• 

Lord  Dkvm  »v'«  .^  •     "^""f"'  '"  *'"'  '"'«  of  "istruments  urnLr  seal.  21. 

i.ord  Dknma.n  s  expression  on  the  subject  in  Freeman  v.  Loder    'I 

s.nu.ar  views  expressed  in  America  bv  Mr.  .Justice  S  rouv  ^nTiJ'  .     /     •., 

and  in  a  subsequent  case  bv  the  same  jud '1  '"'"■  "'• 

Siief  lu^'r''''""''^'.'''^  '"""''  ''""'  ^''""-  "'t-duction  into  the 
Chief  .Justice  Gibson-'s  dislijco  to  their  admission    •'" 

s.mUar  opinion  of  Pkhk.ns,  J.,  i„  Cox  v.  O  'JiU.,  "> 
ot  Ntuart,  J.,  in  another  Indiana  case  "•' 
of  C00I.KY,  C.  J.,  in  Sironff  v.  Grand  ^Zik  R.  Co.  "2 
ot  Senator  Wright,  in  Dykers  v.  AUe-   ■>■> 
of  Mr.  .Jusli.e  Mu.i.ku,  in  Parfrid<,e  v.  Insurance  Co.  23. 
of  Sto.vk,  J.,  in  Jiurlow  v.  Lamherf,  2a. 
different  views  entertained  bv  other  jud^res  '>3-25 

the  opinion  of  the  Supreme  Court^.f  Vermont:  "  l^sa-^e  and  custom  will 

accomplish  everything  except  impossibilities,"  2.i. 
their  introduction  favored  bv  H^nnnipr,    r      .■  *i     o 
of  Massachusetts.  23.  ^  «"««^'^»'  J-  "'  the  Supreme  Judicial  Court 

views  of  Raxxkv,  J.,  „n  the  evils  which  would  result  from  their  rejection. 
the  difficulty  of  the  subject  pointed  out  bv  Dkwky,  J    in  Clark  v  /i,./-.  ■  -a 


law.  :j2 


.52N 


INDKX. 


JflJlLMAL   OPINION    OF    rSA«K    AND   {:VST(iM— Continued. 

TiioMrsov,  C.  J.,  of  IV-iiiisvlviiniii.  fiivors  their  admission  into  tin;  luw,  2i 
Lord  Cami'hki.i.'s  vii'ws  in  Humfrey  v.  Dale,  'Jf). 
libcrnlity  shown  in  Kii^hind  of  hitc  years  in  admitting  them,  '!'>. 
the  Ainericati  cases  still  (!ontradic't"ry  and  cont'u.''inm,  2o. 
admissibility  of  ii.sai;t!  to  atlect  written  contracts,  3*15. 

views  of  the  text-writers  and  judges,  3t>0. 
usages  Contrary  to  legal  rules  valid,   ttl."). 

contradictory  expressions  of  some  judges,  405,  4Gti. 

JL'UV.     (S'ee  alsu  Law  and  Fait.) 

custom  must  be  given  in  evidence,  97. 

cannot  be  found  by  jury  from  their  own  knowledge,  97. 

.irS'l'ICK  OF  THK  I'K.VCK.     iSee  OKi-irKs  and  Okkickks.) 


KNoWLKlXJK, 

a  person  entering  into  a  contract  is  not  bound  by  the  usage  of  a  particular  bu-i 
ness  unless  it  is  so  general  a-  to  furnish  a  presumption  of  knowledge,  or  it  i- 
proved  that  he  was  accjuainted  with  it.     It  was  a  rule  in  a  cotton-factory  in  A. 
and  some  neighboring  factories,  that  no  person  employod'sTrouId  leave  thci  ■ 
se'-vice  without  giving  a  fortni;;iit's  notice  of  his  intention  to  quit.     A  weave:' 
who  did  not  know  of  this  rule  worked  in  the  factory  without  any  agreement  :i^ 
to  the  terms  of  service,  but  wiis  paid  by  the  yard  for  the  work  which  he  turnt-il 
out.     He  left  the  factory  without  giving  any  previous  notice.     Held,  that  the 
rule  was  not  binding  on  him,  and  that  ho,  therefore,  was  not  liable  to  an  action 
for  damages  by  the  owner  of  the  factory  for  thus  leaving.     Stevens  v,  Reeuen,  G. 
general  commercial  usage  presumed  to  be  known  to  all,  45. 
but  not  so  as  to  particular  usages,  45. 
kiiowledge  of  particular  usages  must  be  shown  by  express  proof,  or  by  evidence 

of  their  generality  and  notoriety,  45. 
custom  prevalent  between  owners  and  tenants  of  particular  estate  not  presume! 

to  be  known  to  tenant,  45. 
particular  usages  of  insurance  trade  not  presumed  to  be  known  to  dealers,  15. 
so  also  of  the  us  iges  of  carriers.  45. 

u-;igcs  not  known  to  parties  not  binding —  other  instances,  45. 
usage  of  auctioneers  as  to  fees  for  services,  45. 
of  factors  as  to  disposition  of  funds  of  principals,  46. 
of  merchants  as  to  commissions  allowed  to  agents,  4(). 
of  cabinet-ma'cers  as  to  employment  of  workmen,  40. 
of  brokers  as  to  indorsement  of  checks,  40. 
of  lessor  of  mine,  4(). 

of  livery-stable  keepers  to  have  a  lien  on  horses  boarded,  40. 
of  publishers  as  to  authors'  copyright,  46. 
of  printing  establishments  as  to  sale  of  good-will,  46. 
of  hotel-keepers  as  to  deposit  of  money  of  guests,  46. 
usages  of  the  Stock  Exchange,  47-50. 

person  dealing  in,  or  employing  broker  to  deal  in,  Stock  Exchange  presumed 
to  agree  to  its  usages,  47. 
illustrations  in  the  English  decision*.  47-40. 
persons  having  ordy  occasional  deal  in  j,-  willi  brokers  not  presumed  to  know 
their  usages,  40. 

usage  of  brokers  as  to  '•  straddle  '  contracts,  40,  .50, 


I.NDKX. 


.'rj.t 


ngc  presumed 


med  to  know 


usiiijo  as  to  chMi'nn,  for  tflcLrnitiis,  r,Q. 
customs  of  xTviiMt.^of  ('(.rix.nlioii.   ,■,()-.")•' 

ususe  of  ..rvMMts  of  ..orponaion  „..,  U,u>^,  „  „moor.  not  bindin.  on  i,    -.0 
but  t).o  r  Icowl.!,..  ,„.v  1.0  i,n, 1  ,V„n,  the  notori-tv  of  tl...  ushko    50 

''r;;'.;;;;;tT''" ■•-"-"  ""^---i'^-^-otiinvio,. 

Ciistorii  of  mnrcliiiiits  to  nlmr^ro  imrrcst.  '}-2. 

iniist  1)1'  known  to  oiistoiner.  to  l.ind  him,  .'.2. 

but  knowlcHliro  may  be  implio<l  from  previous  doalin-s   52 
customs  of  banks,  .",;;. 

eases  whiH,  hold  that  in  onlor  to  ain-t  a  person  with  the  usa.e  of  a  parti..,- 
lar  bank  ho  must  bo  shown  to  have  known  it,  .Titinso,!  -V; 

:sr:r  mirir"^^^ '"  '"-'^  ^'-^""^  ^'^  ^"^—  -•^-"•-  '^ •..  t. 

customs  of  particular  tra'les  or  professions,  53 

all  trades  have  their  usa.:es,  which  are  'presunmbly  part  of  everv  contrac. 
made  with  reference  thereto,  o;).  «^«r\  (onttac . 

not  material  that  party  had  o^re.ss  notice  of  then,  in  foliowin.^  eases    V 
custom  of- veterinan.  su^^eons  to  cha„e  IWr  attendan :j:;ll  1,, 

custom  of  ,. lass-ware   manufaeturers  to  allow  a^^onts    eonnnis.ion   on 

goodsordereddirectlythroui^h  manufacturer  .-.4 
customer  of  employers  requiring  of  servants  no'tic.,  of  intention  to  le.ve 

must  bo  known  to  latter.  54  ^^' 

":^:;ri!:;:r;5r" '" """ '''"""  ''■""'  ="'^'  '^^■'-'"  -^'"-  ^^  this 

latter  may  be  presumed  to  be  known  to  servant  or  on.plov  or  54 
customs  in  insurance,  law.  55,  oC.  '     ■      ' 

particular  customs  not  known  to  insured,  inadml-ible    ',5 

custom  to  charge  extra  premiums  on  unoecupied'dwellini,.],o„ses  5". 
usa^e  to  require   as  proof  of  death,  eerlilieate  ,ron,  attending  phJsiehn 
ot  deceased.  00.  ^  l'".>"'i' I'ln 

usage  for  insurer  to  receive  notice  of  inerease  of  risk,  and  to  h.vo  opti„n 
ot  continuing  ..r  annulling  policv,  55  "^ 

custom  that  term  "carpenters,"  in  policy,  referred  to  the  emplovment 
of  carpenters  in  adding  to  buildin-s  in^urod    55 

custoni  to  reject  applications  on  buildings  previously  fired  bv  an  in- 
cendiary,  55.  ^ 

custom  to  require  notice  of  additional  insurance  to  be  .^ven  .r, 
this  case  open  to  criticism  on  other  grounds,  55,  nffte 

"gS  hellii;  5'"'  '"'""  '"  "^'"'^  ""'"^  '"""•^^'  -'^  "^  the  time  in 
custom  to  require  applications  for  additional  insurance  to  be  in  wrili,,.. 


31 


530 


INDEX. 


iiS()WLi-'AHiK—Co?itin,><id. 

usn'i;e  to  coiistrtie  "standinj^  dotaolied  "  as  meaning  that  subject  sliali 

be  at  Iwist  twenty-five  ft'ct  from  exteninl  exposure,  fir). 
usage  to  riMjuire  preliminary  survey  of  goods  darniiged  by  purt-wardens, 

usage  as  to  mode  of  adjusting  losses,  56. 
particular  customs  not  Unowii  to  insurer  also  inadmissible,  56. 
cMstoin  for  watelinmii  at  factory  to  leave  on  Sundays,  56. 
custom  not  to  rcgaid  the  Straits  of  Northumberland  as  within  the  Gulf 
of  St.  fjawrcnce,  56. 
knowledge  j''  custom,  when  not  pn!sumed,  56. 

custom  cannot  affect  those  between  whom  there  is  no  privity  of  contract.  56. 
custom  between  brewers  and  tavern-keepers  cannot  affect  distillers.  56. 
custom  cannot  affect  those  ignorant  of  it,  57,  58. 

custom  of  bank-  caimot  bind  p.irty  who  does  not  intend  to  be  brought  williin 
its  opeiiitioii,  57. 
cusi,;n:  .if  bank  does  not  alfect  note  not  payable  there,  58. 
one  iiistance  of  a  practice  will  not  show  a  usage,  58. 
but  may  show  knowledge,  58. 

L.\N1)L<)IID    AND    TKNANT, 

customs  of,  in  Ireland,  18. 

custom  foi-  poor  and  indi(]i'nt  householders  to  cut  and  carry  away  rotten  boii<;hg 

and  branch  's  in  a  chase,  31. 
custom  to  pay  -onietimes  two  ponce  and  sometimes  three  pence  in  lieu  of  tithes, 

31. 
custom  for  tenants  of  collieries  to  throw  earth,  stone,  coals,  etc.,  near  t<>  certain 

coal-pits,  31. 
custom  to  dig  turf  for  making  or  repairing  grass-plots  rts  (cxasian  I'equires,  31. 
custom  for  occupitsrs  of  l)rick-kilns  to  carry  away  as  nuich   clay  as  was  at  any 

time  recpiired  by  them  to  make  bricks,  -Vl. 
the  rule  of  law  as  to  importing  into  the  terms  of  a  tenancy  the  custom  of  the 
country  does  not  admit  of  evidence?  of  the  usage  of  a  particular  estate  on  the 
property  of  a  particular  individual,  however  extensive  it  may  bo.      Wornerdey 
V.  Da  11;/,  5,  45. 
to  cut  rushes  on  lord's  land,  65. 

custom  for  lord  of  manor  to  have  toll  on  goods  landed  on  his  wharf,  65. 
to  dig  for  clay  to  nnike  bricks  on  lord's  iand,  65. 
to  grind  wheat  at  mill  of  lord  of  manor,  t)6. 
to  grind  corn  in  their  own  houses  and  pay  toll,  Ii6. 
to  receive  toll  on  all  corn,  66. 

custom  that  commoner  caimot  turn  in  his  cattle  till  after  lord.  67. 
that  lord  shall  have  a  tine  for  every  pound  breach,  67. 

that  outgoing  tenant  of  farm  shall  look  exclusively  to  incoming  tenant  for  com- 
pensation for  seeds,  77. 
customs  between  landlord  and  tenant,  267-1276. 

relation  of  landlord  and  tenant  implies  agreement  to  act  according  to 

custom  of  country,  267,  268. 
usage  may  sliow  on  what  property  and  to  what  extent  rent  is  collectable, 

267. 
ftt  common  law,  tenant  for  years  not  entitled  to  the  waygoing  crop,  2ii8. 
a  custom  that  a  tenant,  whether  of  parol  or  deed,  shall  have  the 


INDKX. 


631 


ithin  the  Gulf 


iroiiErht  within 


,enunt  for  com- 


j;oing  crop,  '-')?• 
shall  hnve  the 


LAKDLOKD  AND   THXAN'T- rw^i«..rf. 

waygoins  'r-.p  aftor  the  expiration  of  his  term  is  good.      Wiaale.- 

this  custom  rcoojriiized  in  America,  2t>8. 
except  in  \'irs,'ini:i  and  Canada,  2t;'.(. 
other  customs  l)f.tween  landlord  and  tenant  2o<)  VQ 

custom  requiring  lessor  to  clean  hmsed  house  before  lessee  enters. 

for  proprietors  of  common  stairway  to  use  walls  for  si-ns  "70 
tor  adjomu.g  owners  to  pay  expense  of  partition  fences  '^70 
or  common  walls,  270. 

payment  of  expense  „f  conveyances  regulated  bv  custom,  270 
customs  as  to  term  of  tenancy,  270. 
explaining  terms  of  lease,  271. 
what  are  fixtures  determined  by  custom,  271,  272. 

except  wiiere  partie.  have  expressly  eonlra.^ted.  •>72. 
customs  not  admissible  to  contradict  lease,  272. 
when  lease  not  inconsistent  with  custom,  27;!-27f) 
In  a  lease  of  a  rabbit-warren,  the  lessee  covemmted  that  at  the  expiration  of  the 

them  £m  per  thousand.     In  an  action  by  the  lessee  against  the  lessor  ibr  ref us 
.ng  to  pay  for  ,ho  rabbits  left  at  the  end  of  the  tern.  :kel,,  tint  parol  evidoe" 
VHS  adnuss.ble  to  show  that  by  the  custom  of  the  <.ountrv  whe./th    lea  e" 

s:S::^;z^;;r""""'•"  "^ "'''''  ^  -bbits,  denoted ....  z^i 

contract  for  time  eertain  cannot  be  evaded  by  .nistom   441 

landlord  and  tenant-  customs  against  law  admitted,  470. 
LANGUAGE, 

analogy  between  customs  and,  17-19. 

LAW  AND    FACT, 

inquiry  as  to  mode  of  business  not  a  question  of  law  103 
whether  usage  is  established  is  for  jurv,  104. 
whether  it  is  binding,  for  the  court,  IO4! 
reasonablene-s  (jf  usage,  for  court,  104. 
in  cases  of  written  instruments,  105. 

LEGAL  RULES, 

customs  against  rules  0-  maxims  of  common  law  not  bad   64 

as  gavelkind  and  borough-Knglish,  which  are  contrary  tJ  the  law  of  descent, 

or  custom  of  Kent,  which  is  contrary  to  the  law  of  escheats,  64. 

common^     ""I'""'  '""'™'-' '°  '"""'  ""''^  ''''  P"^"^  P^'^^T  are  bad,  64. 
common-law  customs  not  inadmissible  because  in  conflict  wHh  legal    ules  465 
gavelkmd  and  borough-English  examples  of  this.  405 
usages  contrary  to  legal  rules  valid,  41)5. 

contradictory  expressions  of  some  judges,  465  460 
banks  and  banking-  usages  against  le-^al  rules  admitted.  167. 

usages  agamst  legal  rules  rejected,  467,  468. 
common  carriers  -  usages  against  legal  rules  admitted,  468. 


532 


INDEX. 


LEWAL    RULES  —  Continued. 

usiiges  against  legal  rules  rejected,  409. 
corponitions  —  usages  against  legal  rules  admitted.  4150, 
insurance  —  usages  against  legal  rules  admitted,  4(J'.J. 

usages  against  legal  rules  rejected,  470. 
landlord  and  tenant  —  customs  against  law  admitted,  170. 
contracts  for  personal  services  —  customs  against  law  admitted,  471. 

customs  against  law  rejected,  471. 
partnership  —  customs  against  law  admitted,  471. 
principal  and  agent —  usages  against  legal  rules  admitted,  471. 
usages  against  legal  rules  rejected,  471. 

it  is  a  rule  of  law  that  an  agent  cannot  act  as  such  for  both  vendor 
and  purchaser,  and  receive  payment  for  his  services  from  both. 
Therefore,  a  custom  among  brokers  in  the  city  of  Baltimore  that 
in  exchange  of  real  estate  the^'  are  entitled  to  a  commission  of 
two  and  a  half  per  cent  from  each  party  on  the  value  of  the 
property  exchanged,  is  invalid.  Raisin  v.  Clarh-,  431. 
vendor  and  purchaser — usages  against  legal  rules  admitted,  472. 

usages  against  legal  rules  rejected,  472, 
miscellaneous  usages  admitted  or  rejected  because  contrary  to  rules  of  law, 

472. 
necessity  for  reviewing  the  contradictory  cases,  473. 
the  facts  and  opinions  of  the  judges  in  these  eases,  47 1-484. 
the  above  cases  examined,  484,  485. 
the  true  meaning  of  the  rule  that  a  usage  must  not  conflict  with  the  law.  486. 

LEGISLATURE, 

the  originator  of  common-law  custDuis,  IG. 

custom  not  good  because  it  might  have  been  enacted  by  Legislature,  lii. 
as  if  it  be  unreasonable,  lU. 

LIEN.     (S'ee  Common  Carrikk.s  :  Corporations;  Livery-stablk  Kkkpkii.) 

LIVEKY-STABLE  KEEPER, 

usage  of,  to  have  lieu  on  horses  boarded,  4(). 


MARITIME  CONTRACTS.    {See  Common  Carriers.) 

MASTER  AND  SERVANT,     {See  also  Payment;  Principal  ani>   Agknt:  Mk- 

OHANICS  AND  WORKMEN.) 

custom  among  wholesale  merchants  to  allow  salesmen  for  time  lost  by  8ickni?s.<, 
33. 

habit  to  call  on  workman  to  rectifj'  careless  job,  38, 

practice  of  mills  to  give  certidoateof  honorahio  discharge  to  operative,  38. 

act  of  railroad  in  paying  for  medical  attendance  of  employee  does  not  make  a 
custom,  38. 

it  was  a  rule  in  a  cotton-factory  in  A.,  and  some  neighboring  factories,  -t  no 
person  employed  should  leave  their  service  without  giving  a  fortnight's  nouce 
of  his  intentio!!  to  quit.  A  weaver  who  did  not  know  of  this  rule  worked  in  the 
factory  without  any  agreement  as  to  the  terms  of  service,  but  was  paid  by  the 
yard  for  the  work  which  he  turned  out.  He  left  the  factory  without  giving  any 
previous  notice.  Held,  that  the  rule  was  not  binding  on  him,  and  that  he, 
therefore,  was  not  liable  to  an  action  for  damages  by  the  owner  of  the  factory 
for  thus  leaving.     Stevens  v.  Reeves,  6. 


I-M>KX. 


)  rules  of  law, 


h  the  law.  tSfJ. 


533 


MASTER   AND   SKRVANT- r„„,,..,. 

custom  of  ^,....,;,j,  j^z;z:^  z  ;z^'  '"^^^  ""^''  -"'  "^  ^-->".  5^. 

ordered  di..o..tly  thro,,,,  ,„,J:^,;'^^^-  "^-t.  eo.n,ni.i ,,,.„, 

CUSto,,,  of  CiidIdvci-     IV        •   • 

bek„„„„J,„;^,".;;''"""S  ""»"•"'«  "0li=e„n,„c,„i„„  tote,,,.   ,„„„ 

latter  may  be  pros,in,od  to  be  k„ow„  t 

th,it  if  female  slave    ,edt^' ""r"''"^'  '"■  '- 

amo,,,.  wholesale  dealers  alio  "'/!.,,  ''  """  '"  '"'•'"•'  "- 

without  ref;a,.d  to  le„yth,  7:]        '"  '  P"'"  '"''  ^''""^  '"^^  H  sickn.w. 

;;;;::;rL:;';;rj;:;:;,,-:;- '"  -■••  - »"™-'  >«.. .... ... 

that  person  emplovcd  to  cut  if.,v„    I- 

may  show  Icio-th  of  bi.-i,,^.,  27(1 
in  an  iietio,,  t'or  wr()n..-fiiiK,  i-  •  • 
^-1-ation  stated  th:'  '  w  r;:::!:!:,  t-  ^^'^-  «^  '^  -wspape,  the 
-idenee  a.  to  the  ti.no  iC  whid^  j""' ^■""-  '''''^^  was„odi,.ect 
"'■i?l>t  show  that  it  was  eustou.ar  ,,  liT  ""''""''"'•  ^^'^'^'  '''"t  ''« 
.•••..-ed  for  a  year  unle.ss  th  r  ".  Z  t  "'  '""^P"""-«  ^"  '"'  '^n- 
trnry.  ffolcroft  v.  /^a.i,,,  j^.r^'  '"  "'^f'''''^^  ^t,p„lHtio„  to  the  eo,,- 
ti.-au-o  as  to  i„,tice  between  oHn.,.r         , 

«s  to  tern,  of  service  of  drv' ....rch^H  -  'T-T''''""  "^  "^wspapc-s.  270. 
H^  to  privileoe  of  journeym,;,,  to  w,    <  f;',.";;  ''       , 

of  business  houses  to  ftu-nish  ea.h  othe  's  TT      7  '"'*''"  '"""•''''  -77- 
as  to  proper  performance  of  ..ervioe   •>77  '  ''^'''°''''  -"• 

"SMge  that  printer  of  book  cannornrln,         •      • 
th,.t  employment  of  arehite^Ho^,^  k     'T'""'  '"'  '""^'^"-  -"'• 

of  building.  277.  '"  '""'^^  P'""^  g'-«^  'n-n.  superintendence 

that  litera,.y  writer  may  employ  a..si<ta  lU   •>77 
as  to  wages  and  conipensation.  278  '      ^• 

"sages  as  to  mode  of  paying  sea,nen,  278 
cha,-ges  of  veterin,iry  surgeon.s,  278 

nuht  of  commission  merchants  to  com,ni<sion   "7R 
charges  of  nroFps^;..M„,  ..-„         """■'"on,  ..,8. 


professional 
of  printer  of  book.s.  278 
of 


men,  278. 


proprietor  of  newspaper  to  ch 


man 


other 


ided. 

oases,  278,  279. 


'«'-g"  for  ,-,  Ivoii 


'>me/it  until  counte. 


534 


INDKX. 


MAsrHK    AND   HERVXST  —  Continued. 

coiitnict  not  wholly  performed ;  qaaalnin  uiernit   may  be  iillowed  by  usagai 

279. 
contracts  for  personal  service  expliiinuiilc  by  ii.-iii;t.'.  ;^>'.>4~508. 

as  that  servants  are  entitled  to  holiclays  although  covenanting  to  "lose 

no  time,"  3!tt. 
or  that  actress  is  only  entitled  to  pay  during  season,  though  engaged  for 

"three  years,"  8'.t4. 
or  that  servant  is  entitled  to  notice  of  dismissal  where  contract  is  in 

writing,  8!>4-:!'.t(). 
what  is  meant  by  particular  description  of  trade,  explainable  by  usage, 
3y4,  397. 
as  "cabinet  and  nialio^\uiy  door-maker"  in  agreement  to  teach  that 

trade,  39i. 
to  show  duties  of  "  salesman,"  397. 
of  "lace  buyer,"  ;!07. 

what  is  included  in  "ship  carpenter's"  work,  397. 
what  is  meant  by  "same  ground,"  307. 
wh.at  is  expecti'd  of  girl  engaged  iis  "dan.-ou-ie,'"  ■'107,  398. 
contracts  of  hiring,   if  express,  ciiimot   lie  altered    by  contradictory  customs, 

441. 
statutes  rcf|uiriiiLf  contracts   with  seaman  to  be  in  wi-iting  —  contrary  usage 

voitl,  458. 
conlracls  for  per-onal  jci'vices  —  custom-;  against  law  admitted.  471. 
customs  against  law  rejecte.j,  471. 

MECHANICS   AND    WORKMKN,     (.SVe 'r/.vo  Mastek  and  Skrvant.) 

usage  of  plasterers  to  charge  not  only  for  space  covered,  but  for  one-half  of  sur- 
face occupied  by  openings,  73. 
contracts  for  labor  and  materials  exphdned  by  usiige,  ;!',iO-304. 

a  contract  for  the  excavatiori  of  lots  in  a  city,  so  us  to  make  them  conform  to 
a  certain  phui,  was  siletit  as  to  whom  should  beloni;-  tiie  sand  or  other 
material  taken  therefrom.  A  custom  existed,  long  e.-tublished  and  noto- 
rious, that  it  went  to  the  excavator,  and  not  to  the  owner  of  the  lots. 
Held,  that  evidence  of  the  custom  was  admissible  to  explain  the  contract 
of  the  parties.  Cooper  v.  Kane,  339. 
mo<le  of  measuring  work  estimated  by  custom,  391,  392. 
other  instances,  393,  391. 

(See  nlso  WouDis  and  Piika.sks.) 
A.  agreed  to  make  B.  a  "satisfactory"  suit  of  clothes.     A.  afterwards  delivered 
the  clothes  to  B.,  but  B.  returned  them  to  A.  with  a  notice  that  they  did  not 
tit,  and  were  unsatisfactory.     In  a  suit  by  .V.  iigain-it  B.  for  the  price:  held. 
that  evidence  that  a  custom  existed  among  tailors  of  liaving  garments  tried  on 
after  they  wore  finished,  and  then  nniking  any  alterations  tliat  might  be  neces- 
sary to  make  them  tit,  was  iiuidmissible,  because  it  contradicted  the  terms  of 
an  express  contract.     liroim  v.  Foster,  417. 
other  cases,  441-443,  462. 

MINES   AND  MINlNCr,     {See  also  Lan-dlokd  Avn  Tknaxt.) 

usage  of  coal-miners  not  sutRciently  proved  by  a  miner  who  only  worked  in  one 

shaft,  43. 
usage  of  lessor  of  mine,  4(5, 
to  mine  coal  without  leaving  pillars  to  support  surface.  77. 


INDEX. 


535 


wed  by  usage, 


MINES    AND    mSl}^G- Continued. 

of  owners  of  .nines  to  .lispose  of  water  pumped  therefrom,  bv  allowint?  it  to  flow 

nito  adjacent  natunil  watercourse,  77. 
mining  customs  contained  in  book,  whole  book  must  be  given  in  evidence,  103. 
miniuir  ai^rcement  explained  by  usago,  .'i'JO. 
meaninij;  of  '•  level  "  in  lease.  ;j'.,iO. 
customs  of  mining,  8'JO,  note. 
MORAL, 

a  custom  must  be  moral.  58. 

custom  giving  to  lord  of  manor  right  of  concubinage  with  tenants'  wives  on 
their  wcdduig-nights,  inunoral,  o.S. 
such  custom  denied  in  Hngland,  ."jS. 
in  an  action  by  o.ie  for  tlie  sedyction  of  his  daughter,  a  custom  of  "bund- 
u.g"~t.e.,  lor  persons  courting  to  sleep  together— cannot  be  set  up  bv 
bun  to  exruse  his  connivance  at  the  intercourse.     Sea,/ar  v.  Slu/erland   '\ 
custom  of  "  bundling  "  described  by  Washington  Irving,  59. 
cu>tomof  -bundling"  rejected  in  action  for  seduction  in  Pennsvlvania  i, 
1845,  p.  5!t. 

cu-:om  of  pn>inis.u,)us  cohabitation  among  free  and  slave  olacks,  IJO. 
iniMioral  customs  in  England,  (51,  note. 

in  prosecution  for  adultery,  cu.stoins  allowing  great   familiaritv  between  men 
and  women  rejected,  01. 

but  it,  pn.ving  adultery  by  circumstantial  evidence,  social  habits  of  the 
parties  relevant,  (Jl. 
custom  of  the  charicari,  01,  02. 
cannot  excuse  murder,  02. 
or  riot,  02. 

MUNICIPAL  CORPOUATIONS, 

usage  of,  must  b«  general  among  like  towns  and  cities,  and  not  local  in  one  place 

4L  *^ 

custom  of  city  as  to  grading  streets,  97. 
municipal  charter  and  powers  as  affected  by  usage,  40.!. 
unlawful   expenditure  of  money  by  municipal  colpo.ations  not  valid  by  usage. 


worked  in  one 


NEGLIGENCE, 

negligence  as  affected  by  custom,  .318-:!2;i. 

what  is  diligence,  to  be  judged  by  the  liabits  of  the  country,  318.  .319. 

carrier  must  take  customary  care  of  property,  -Vlt). 

custom  for  consignee  to  furnish  means  for  delivery  may  excuse  carrie;,  821. 
o22. 

other  cases,  322. 

negligence  in  other  bailments  may  be  judged  by  usage,  .^2.3,  .S24. 

as  affecting  the  contributory  negligence  of  a  .servant,  ;i24-o28. 

customs  to  excuse  negligence  rejected,  •VI'*,,  329. 
statute  requiring  safety-plugs  on  steam-boilers  401. 

contrary  custom  in  manufacturing  establishments  void.  401. 

NEG.)TIABLE  AND  AS.SIGNAULE   PAPER.     {See  aUo  Uanks  ano  IJ.vnking  ) 
custom  as  to,  in  Iowa,  44. 

NEWSPAPERS.     [See  Publishkrs  and  Authors.) 


\      .r 


5M 


INDIOX, 


NOTARY.     (.SV  Okkicks  and  Opkickhs.) 
NOTICK.     {Sen  Ivnowlkdok.) 
NUISAVrK, 

evidoin'o  of  oiiHtoin  on  question  of,  IiIiO. 

OFFICKS  AND  OKFICKIJS,     (.SV  «/.sv)  Coki-okatioxs.) 
custom  of  survt'\ nv  in  niakinif  nioMsurcincnts,  '.','>. 

custom  of  cliin'nin!;  iiili'ro.st  ditloriMil  with  ditlrriMit  rity  otliccrs  invalid,  37. 
custom  to  oblif^c  person  to  take  oliico  under  ponaltv.  (14. 
to  tiilvo  part  of  l>iirl(\v  oxportod.  (>:'), 
to  distrain  i;oods  of  sliip  fi)r  port  duc-s,  (15. 
unreasonable  usai^es  anionic  public  ollicers,  74. 

for  tlour  insp((et()r  to  take  to  bis  owji  use  Hour  drawn  from  barrel  in  process 

of  inspection,  as  p'.'r(iuisile.  74. 
of  i^ovornment  officers   to  acccipt  bills  witbout  consideration,  or  to  pledge 

credit  of  nation  as  surety  for  accommodation  of  contractor,  74. 
for   boUlers  of  settltMiients    and    preemptions  of  land    to   i^ive   one-half  to 
nnotber  for  surv(!yinu,-  and  payini;  expenses  for  carryiti!»  claims  to  ijrnnt.  74. 
j.i  making  surveys  for  location.s  of  tjoverninent  land  n'rantod  to  settlui',  to 

include  more  land  than  warrant  actually  called  for,  74. 
custom  of  notary  as  to  mailint;  notice,  HI. 

babi  _jusll"0  of  tbe  pe;ice  to  read  over  bills  of  sale  to  sii^ners,  81. 

to  di  iivoi  evecutions  to  otticer  makini;'  attachment,  SI. 
duty  of  bank  as  colbictinii;  agent  may  be  delei;ated  to  notary  by  usa<;e,  209. 

condictinu;  decisions.  llflO. 
usaj^es  uiiiy  prescribe  otlicer's  duties,  powers,  and  compensation,  333. 


PARTICULAR  CIJST(^MS, 

particular  <'u-:tt)ms  detined.  lo.  Ifi. 

conlirmed  to  piu'ticulav  district  -  by  -tatute.  lli. 
instances  of  j)articubir  customs.  17, 

jravelkirul  in   Kent.  17. 

borough- l'',ni;!isli.  17. 

custom-  of  manors.  17. 

customs  of  London,  17. 

law  of  tb(!  river,  17. 

law  of  the  road,  17. 

PARTNERSHIP, 

customs  ill  the  law  of  partnership,  178.  'J7fl~'284. 

partner  may  bind  linn  by  act  within  usual  scope  of  busines-;.  279.  2^0. 

it  is  the  custom  on  the  .\labama  River  for  ilic  pro|irieiiirs  of  >icamboati 
to  purchase  salt  at  Mobile,  to  be  carried  up  the  river  and  sold.  Held, 
that  in  the  absence  of  a  contrary  stipulation  in  a  p.artnership  agree- 
ment made  for  the  purpose  of  running  a  steamboat  on  that  river,  the 
tirm  would  bo  liable  for  salt  purchased  by  a  partner  at  Mobile  for 
transportation  mid  sale  on  the  boat.  Waring  v.  <iradij,  178.  "JSl. 
usage  as  to  name  of  tirm,  282. 
common  report  cannot  prove  existence  of  partnership,  282, 

nor  dissolution,  282. 
usage  may  establish  partnership  as  to  third  parties,  283. 
us  by  issuing  joint  bills  and  occupying  same  store,  284. 


iM)i:.\, 


537 


rol  in  process 


rARTSKlifillU'-Continun/. 

or  .ulvrlisiM-  ,.r  .listribi.Unir  l.and-bills  in  firm  naim.,  -s-t. 
or  inarkiii!;  niorcliandisc,  2H-4. 
pnrtnorsliip  — eu-<t<.ni.s  a-uiiisl  l,iw  admitted,  471. 
PAVMKXT, 

habit  of  morohatil.s  to  pay  (l..i)ts  bv  cbccits,  ;;7. 
to  pay  workmen  in  orders  IWr  i,'ooil^,  ;J8. 
not  to  pay  \vaj,'e.s  punctually.  88. 
to  take  ciirroiicy  in  payincMit.  .'W. 
payment  may  be  made  accordin--  to  u.saj,'e,  ;il5. 
illustrations,  SlO. 

PEACP]AnLK.     {See  AcuiiKsruscK.) 
PLACES, 

'"reZ/'S  '"  ''''^'"''''  ^'''  ''"■""'  "'"  ^'"'•^''•■'"'"'••'"•"l  "^  within  (Julf  of  St.  Law- 
geoi,'rapbi,.al  terms  explained  by  usajre,  >10i    lO",. 
PI.ASTKIIEKS.     {See  Mkoiia.mcs  a^d  Woukmkv.) 
PLEADING, 

general  usa<re.s  or  customs  need  not  be  pleadr,|,  112. 
but  (ilUer  as  to  local  customs,  112. 

andtho.se  excusing  non-perlormanco  of  le-al  duties.  11" 
all  requisites  of  usage  must  he  aviirred,  llL'. 

but  averment  of  knowledges  unneeessurv,  wh.Mi,  112. 
when  usage  not  sutlieiently  pleaded,  112. 

evidence  of  usage  admissii.le  in  New  York  under  general  .l,.„i,d.  112. 
PLEDGKOR  AND   PLKDGKE. 

rules  of  law  as  to,  not  alfectod  by  contrary  custom,  810. 
PFiESUMPTION, 

general  commercial  usages  presumed  to  be  known  to  all.  4r,. 

but  not  .so  as  to  particular  usages,  45. 

knmvdedge  of  particular  usage^  must"  be  shown  by  express  p,.„„f;  or  l,v  evide,.. 

of  their  generality  and  notoriety,  4.5. 
custom  prevalent  between  owner,;  and  tenants  of  particular  -Mate  not   presun.ed 
to  be  known  to  tenant,  4").  '    ""'""' 

particular  usages  of  insurance  trade  not  presum.nl  to  bo  know:,  ,..  dea'ers   4-, 
so  also  ot  the  usages  of  carriers,  45.  '     " 

all  trades  have  their  usages,  wh'ich'are  presumably  part  of  evcrv  contract  made 

with  reference  thereto,  5:!.  " 

knowledge  of  custom,  when  not  presumed,  56. 
PRINCIPAL   AND   AGENT. 

"X!''^^  '"""''''''  '^"'  '""'^'"  ^"'  "•'  '°  «over  advance  nnist  bo  "  reason- 
custom  among  commission  merchants,  on  sales  for  ca<h.  ,0  uait  twn   three    or 
four  days  for  the  monov.  :!:!. 

custom  an.ongcommi.ssioninerchants  in   Indianapolis  that   Hour  of  a -^rado  n.t 
suitable  for  .sale  there  is  forwarded  to  New  York    :)'. 

u.sage  of  captains  of  stoa.nboats  in  giving  preni note  for  insurance,  36 

usage  of  factors  as  to  disposition  of  funds  of  principaLs,  \r,. 


53.S 


iM>i;\. 


PltlNCIlVUi   AND   AGKST  —  Confuuie.,/. 

i>t'  miTclmnt-i  us  to  coinmission-i  ullowi'd  U)  iigenU,  40. 
of  brokei'-i  as  to  iinlorseiiiLMit  ot"  cliiH'k-.  lii. 
iisai^cs  of  tlic  St(H'k  Kxflmiii^c,  47-.")(). 

person  (U-aling  in,  or  employing  brokers  to  iloal   in,  Stock    F^xcliange  pre- 
sumed to  a'^ree  to  its  usages,  47. 

illustnitioiis  in  the  English  decisions,  47-4',». 
persons  having  only  occasional  dealings  with  brokers  not  presumed  to  kiiow 
their  usages,  4'J. 
usage  of  brokers  as  to  "  straddle  "  contracts,  I'.t,  .jQ. 
usage  as  to  charges  for  telegrams,  50. 
customs  to  exempt  factors  from  paying  duty  on  corn.  04. 
unrensonabl*!  usages  uinong  principal  and  agent,  75,  77. 

tliat  one.  witliout  authority  from  owner  of  lands,  may  <lispose  of  them  on 

ordinary  terms,  and  bind  owner,  7'). 
among  owners  of  vessels  to  accept  bills  of  their  masters  tor  supplies  fur- 
nished abiH)ad,  75. 
that  the  master  of  a  vessel,  as  such,  may  purchase  a  car<;o  ou  account  of 

owners  without  authority,  75. 
to  sell  vessels  without  authority  from  owners,  75. 
for  bi\>ker  employed  to  purchase  stock,  to  buy  stock   for  himself,  without 

priiu'iijal's  knowledge,  75. 
that  agent  may  sell  property  of  principal  beft>re  he  is  in-trucied  to  do  so,  75. 
of  agents,  in  collecting  drafts  for  absent  parties,  tosurronder  liiem  to  drawees 

at  maturity,  and  take  checks  upon  baidvs,  75. 
of  brokers  of  tamied  skins  to  insert  in  memorandum  of  sale   warranty  of 

quality,  70. 
of  warehouse-keepers  to  have  g(!neral  lion  on  goods  in  their  hands,  70. 
that  person  employed  as  agent  may  engage  in  another  busines-,  7t). 
for  shi[)-brokcrs  to  receive  a  commis-iion  for  introducing  buyer  to  seller.  7i). 
for  agent  to  act  for  both  parties  and  receive  pay  from  both,  70. 
for  insurance  agent  to  recinve  commission  on  renewal  premiums  after  ter- 
mination of  bis  engagement,  70. 
of  wharfingers  to  deliver  goods  without  responsibility,  77. 
agency  must  be  executed  in  accordance  with  usage,  284,  285. 
autlK)rity  of  agent  governed  by  usage,  286,  287. 

T.,  a   factor,  having  goods  consigned  to  him  by  G.,   sold  them  on  three 
months'   credit,   taking  in  payment  the  purchaser's   promissory   note  to 
himself,  but  the  purchaser,  before  the  maturity  of  the  note,  became  bank- 
rupt.    In  an  action  by  (i.  against  T.  for  the  value  of  the  goods  sold:  hel'i. 
that  evidence  that  he  had  acted  according  to  the  custom  of  the  place  Wiu 
admissible,  and  would  discharge  him  from  liabilit}'.     GooUenow  v.  Tyler, 
180. 
other  illustrations,  23(),  287. 
us;iges  of  the  Stock  Exchangp.  287. 
agent's  authority  cannot  be  delegated,  288. 

unless  authorized  by  custom,  28',». 
factor  has  no  power  to  sell  on  credit,  289,  200. 

this  rule  changed  by  usage,  2il0. 
factor  has  no  power  to  pledge  goods,  2'.)0. 
but  may  by  usage,  2U0. 

conflicting  decisions,  290. 


INDKX. 


539 


Limod  to  know 


isolf,  without 


Ills  after  ter- 


rUINCII-AL    AM)   A(;K.\T-ro,,/^„„.,/. 

wliiT..  (isiinc  n-qiiircs,  iii^eiit  must  iiisur..  i^'oocU,  •2'.n. 
paviiiciil  to  iiytMit  us  lUrocled  by  usajje,  li'.rj. 

■ict-ort',  2'.rj,  2tt;!. 
usage  may  softie  a-^'oiit's  Poinpen.sation.  -Jftn. 

illustrntioiis,  litM. 
profits  itmdc  by  agent  boloiii;-  to  principal.  ■l'.t\. 

inconsistent  usage  void,  :i'.i|. 
agent  cannot  act  tor  vendor  and  vendee,  ^'M. 
inconsistent  usages  void,  200. 
other  cases,  2',lij,  2!t7. 
usage  cannot  excuse  disregard  of  instructions.  297. 

illustrations  of  this  principle.  2fl8-:!00. 
agent  not  personally  hound  on  contract  made  for  principal,  HOO. 

hut  may  he  hy  usage,  ;101. 
agent  contracting  in  his  own  name  is  personally  liable,  :J02. 

inconsistent  usiige  void,  ;;fi:;. 
usage  to  add  incidents  to  contracts  of  principal  or  agent,  •■182-n;v';. 

defendants,  brokers,  being  emplo.yed  hy  S.  to  purchase  oil.  "signed  a  not,,  is 
follows:   "Sold  this  day  for  Messrs.  T.,"  plaintirt-s  brokers,  '-to  our  pri-.- 
cipals,   ten   tons  of  linseed  oil,"  etc.,   "quarter   per  cent   brokerM-e   to" 
dclendants.     This  note  defendants  delivered  to  Messrs.  T.     Defetnhmts  did 
not  disclose  the  name  of  their  principal,  S.,  who  became  insolv,.Mt  and  did 
not  accept  the  oil.     Phuntiff  then  sued  .lefendant  for  not  ac-ptin..-  th.- 
od,  laying  the  sale   as  by  himself  to  d.;f,.ndanls.     Defendants  denied  the 
contract.     On  the  trial,  plaintirt'  pn.ved  a  custom  in  the  trade  that  when  ■> 
broker  purchased  without  disclosing   the   name  of  his   principal,    he  wis 
liable  to  be  looked  to  as  purchaser.     IMd,  that  evidence  of  the  custo-,, 
was  admissible,  as  not  contradicting  the  written  ii,strument,  but  explainii  ■•• 
us  terms  or  adding  a  tacitly  implied  incident,  and   that   the  action  iJ 
Ilmnfrei/  v.  Dale,  .'U2. 
other  CH,ses,  882-:;8(J. 
express  contracts  between,  cannot  be  contradicted  bv  usage,  in,  44.'). 
principal  and  agent  —  usages  against  lo-al  rules  admitted^  471.  ' 
usages  against  legal  rules  rejected,  471. 

it  is  a  rule  of  law  that  an  agent  cannot  act  as  such  for  both  vendor  and 
purchaser,  and  receive  payment  for  his  services  from  both.  There- 
fore,  a  custom  among  brokers  in  the  city  of  Baltimore  that  in  ex- 
changes of  real  estate  t^ey  are  entitled  to  a  commiss-on  of  two  and 
a  half  per  cent  from  each  party  on  the  value  of  the  i)ioperty  ex- 
changed, is  invalid.     Raisin  v.  Clark,  431. 

PROOF  OP  US.VGE,     (See  also  Witnesses.) 
usages  probable  by  parol,  102. 
of  land  office,  by  published  decisions,  102. 
reported  cases  of  usage,  admissible  in  subsequent  case,  102. 

unless  its  ilecision  was  by  agreement  of  parties,  103. 
decisions  of  tState  courts  evidence  in  Federal  courts,  103. 
mining  customs;  whole  book  must  be  put  in,  103. 
order  of  proof,  103. 

object  and  pertinency  of  proof  must  be  shown,  103. 

proof  of  notice  may  be  reserved,  when,  103. 


540 


1M)K\. 


J'ROOF  OF   Vi^ AGE  — Continued. 
proper  questions,  103. 

inquiry  as  to  th(!  iiiodo  of  huMnes?  not  n  question  of  law,  103. 
</uantu,n  of  evidonee,  104. 

witnesses  need  not  all  ajjjreo,  lOi. 

contradictory  cviilonco,  101. 

newly  discovered  I'vidtincc,  10-J. 

PUBLISIIRKS  AND  AUTMOHS, 

usage  of  publishers  as  to  aulliors'  copyriijlit,  40. 

of  printins;  cstablis-liinonts  as  to  sain  >if  ujood-will,  40. 

of  publishers  of  newspapers  to  insert  adverlisetuerits  after  object  of  advorti-o- 
ment  has  ceased,  77. 

notices  published  by  usa.^e  in  newspapers,  248. 

in  an  action  for  wroiii^fully  dismissing  the  editor  of  a  newspaper,  the  declaration 
stated  that  he  was  engaged  for  a  year.  There  was  no  direct  evidence  as  to  the 
time  for  which  he  was  ctig;i;;f'd.  field,  that  he  might  -how  that  it  was  <'us- 
tomary  for  editors  of  newspapiM's  to  be  engaged  for  a  year,  unless  there  wa-  an 
express  stipulation  to  the  contrary.     Hdleroft  v.  Barber.  ITJ. 

usage  as  to  notice  between  printers  and  proprietors  of  newspapers,  27f>, 

usage  that  printer  of  book  cannot  print  copies  for  himself.  -77. 

that  literary  writer  may  employ  assistants,  277. 

of  printers  of  books,  278. 

of  proprietor  of  newspaper  to  charge  for  advertisement  until  countc     landed,  278. 


RAILROAD  COMPANY.     [See  CoMMOx  Carriers.) 

RKASONABLENESS, 

a  custom  or  usage  of  trade  must  be  reasonable,  and  it  is  not  so  if  it  i-  sufh  as 
honest  and  right-minded  men  would  deem  unfair  and  unrighteous.     So  held 
of  a  usage  of  undertakers  to  charge  the  original  cost  ot  articles  used  at  any 
funeral,  although  they  might  be  used  at  other  funerals.     Pa.ron  v.  Courtncjf.  11. 
usage  in  strawberry  business   to  put  all   big  strawberries  at  top  of  box 
unreasonable,  11. 
a  custom  of  a  particular  port  that  seamen's  advance  wages  due  under  the  ship- 
ping-articles shall  be  paid  to  the  shipping-agent,  to  be  paid  h\  him  to  the 
boarding-house  keeper  bringing  the  seamen,  for  their  lieiicth,  is  unreasonable, 
and  does  not  bind  the  seamen,  although  known  to  them  at  tiie  time  of  signing 
the  articles.     Metcalf  v.  Weld,  12. 
what  is  meant  by  "  unreasonable,"  68. 
custom  good  if  reason  cannot  bo  given  against  it,  64. 
customs  against  rules  or  maxims  of  common  law  not  bad,  64. 

as  gravelkind  and  borough-English,  which  are  contrary  to  the  law  of  desient, 

64. 
or  custom  of  Kent,  which  is  contrary  to  the  law  of  escheats,  (>4. 
but  customs  contrary  to  legal  rules  or  public  polic\-  are  bad,  t\i. 
customs  beneficial  to  the  public  good,  though  injurious  to  some,  fi4,  65, 
as  custom  to  pull  down  houses  to  prevent  spread  of  lire,  64. 
to  turn  plow  on  another's  headland,  64. 
to  destroy  corrupt  victuals  exposed  for  sale,  64. 
to  oblige  persons  to  take  office  under  penalty,  64. 
to  exempt  factors  from  paying  duty  on  corn,  64. 
to  dig  gravel  on  adjacent  land  to  repair  waj',  64. 


INDKX. 


541 


REASON  A  BLKNKSS  _  Coniinunl. 

to  hivve  !i  Wiitcrini^'-place  in  a.ljaceiit  land,  (J4. 

to  dig  for  balla-t,  •>». 

to  dry  nets  on  anollxir's  land,  i;4. 

to  cut  rushes  on  lord's  land,  1)4. 

to  distrain  goods  uf  ship  for  port  dues.  i\r> 

''In'pi""!""'  '"  '"'"  '""  ""  ""  ^""''  '"'^"^  "'  ^''"'■^  "''''^  '^^  ^'^'' 
to  take  part  of  barloy  exported.  Ou. 
to  enter  on  f]o,,o  for  horse-racing,  (io. 

to  dig  for  elay  to  make  brii^ks  on  lord's  hmd,  65, 
customs  not  unreasonable  if  simply  inconvenient   .i.WJT 

custom  for  all  inhabitants  to  play  at  game,  in  a  particular  close,  65. 

to  dry  nets  on  land  adjacent  to  the  sea,  66. 

to  grind  V     at  at  mill  of  lord  of  manor,  66. 

to  grind  corn  in  their  own  hou-^es  and  pay  toll,  66. 

to  receive  toll  on  all  corn,  6ti. 

for  victuallers  to  erect  booths  on  common,  6ti 
customs  injurious  to  public  bad,  though  beneficial  to  some,  67 

vustorn  that  commoner  cannot  turn  in  his  cattle  till  after  lord,  67 

that  lord  shall  have  a  fine  for  every  pound  breach,  67. 

custoL.s  in  restraint  of  trade,  67. 

to  go  through  a  particular  house,  67. 

to  train  horses  beyond  limits  of  parish,  67. 
existence  of  unreasonable  modern  usage  doubted,  67,  68. 

hy  TuoMPsov.  c.  J.,  in  McManters  v.  Pennsylvania  R.  Co.  67 

by  Chevks,  .J.,  in  South  Carolina,  67. 
usages  pnma  facie  are  reasonable,  68. 
the  test  of  their  reasonableness,  6S. 
court-  will  reject  unreasonable  usages,  68. 

unless  parties  have  actually  in«>rporated  them  in  their  contracts,  68  69 
unreasonable  usages  between  vendor  and  purchaser,  69  70 

^'":;f,w;:Sor'^""^^^  ^^  ^-^^^  -'  ^^-'«^^'  character,  denvery 

on  sale  of  goods  of  one  mill,  delivery  of  goods  of  another  mill,  60 

tha    .ales  of  particular  class  of  goods  are  subject  to  approval  of  public  in- 

that  no  title  passes,  upon  ordh.ary  sale  and  delivery,  without  actual  payment 

of  consideration  within  certain  number  of  d-ys  69 
tlna  if^note  is  given  fbr  gold-n.ine,  and  it  p.:..:.  u^'iproductive,  it  is  given 

for  merchants  to  sign  receipts  presented  by  cartmen  with  goods,  without 
tnquiry  on  part  of  reeeiving-clerk  as  to  their  ownership,  ^r  ph  cT  fro  .' 
which  they  were  received,  (i<).  ^ 

of  board  of  trade  on  cash  sales  of  produce  or  provisions,  giving  buve- 
privilege  of  having  them  inspected  at  his  own  expense  6^^ 

among  dealers  in  cotton  as  to  warehouse-receipts,  69. 

that  where  the  vendor  of  iroods   receiver   nnto' r.f'fi,„ 
•    1  „  ^  lecenes   note  of   tfie  consisnee.  w  thon' 

indorsement  of  purchaser,  latter  is  discharged,  and  maker  Tlone  ::^Zl 


.')42 


INDKX. 


liKASON  ABLKNKSS  —  (\mtinued. 

iitnonuj  merclmnts  to  Imve  tlu'ir  uiood-i  sent  to  tlicir  stores  by  long  unci  cir- 
cuitous routes,  tl!». 

to  baliiiico  booiis  uiiiiuiilly  iiml  (•liiir'»(!  intorost  on  running  accoiuit,  'i!.t, 
unmasoniiblo  ussii^os  of  lKmi<s  imd  bimkcr:*,  70. 

to  honor  oi't'iisiomil  nvi-nlrnfts  of  I'lHtonicrs  in  i^-ond  >t!m(liiin,  70. 

not  to  roctily  luistnlvcs  (liscovcrcd  H''ior  |ici-(in  Icmvcs  bank,  70. 
custom  to  require  depositor  to  produci'  pass-book  good,  ' 
unreasonablo  usai^i-s  of  common  carriers,  71-7;!. 

for  whartingcrs  to  act  as  assents  in  accepting,  on  beluvlf  of  consignees,  goods 
arriving  at  wharves,  71. 

for  consignor  of  a  vessel,  also  owner  of  cai'go,  to  charge  j'ouiini^'tion  on 
freight  paid  by  liimself  to  captain,  71. 

that  an  intermediate  carrier,  who  received  property  -ulijoct  to  charges,  may 
deduct  from  froiglit  earned  by  prior  carrier  value  I'l'  di'tlciciicy  between 
quantity  delivered  and  that  stated  in  bill  of  lading.  ai:d  tliut  prior  carrier 
shall  not  be  allowed  to  show  that  error  occurred  in  stating  amount  in  hill 
of  lading,  71. 

that  to  constitute  delivery  of  goods  by  carrier  by  water,  receipt  must  lie 
given  to  the  carrier  by  consignee  or  agent.  71. 

that  freight  paid  in  advance  may  not  be  recovered  back,  though  not  earned, 
71. 

that  notice  published  in  throe  newspapers  in  city,  of  time  and  place  of  land- 
ing goods  by  steamboat,  is  such  a  notice  as  places  them  c  '-k  of  con- 
siirnee.  71. 


among  o\\  ners  of  tow-boats  that  first  coming  alongside  of  a 


a  sii'nnl 


for  ste;im,  ha-  abs(dute  towing  contract.  71. 
requiring  those  in  legal  use  of  waters  as  a  highway  to  yiohl  to  others  who 

are  using  tluun  lor  an  unlawful  purpose,  71. 
that  contract  made  to  furnish  and  ciu'ry  coal  to  a  certain  port  for  sale  mav 

bo  thrown  up  by  either  party,  at  his  convenience,  no  damage  to  be  claimed 

from  either,  71. 
of  railroad  company  requiring  claims  for  damages  to  bo  made  when  goods 

are  delivered,  or  soon  after,  72. 
that  before  consignee  can  obtain  his  wheat  from  company's  bins  he  mu<t 

sign  receipt  for  quantity,  72. 
that  railroad  will  not  be  responsible  for  contents  of  cars  of  which  their  ser- 
vants have  the  keys,  72. 
that  passengers  cannot  take  their  baggage  to  state-rooms,  72. 
to  land  goods  on  banks  of  river,  72. 
to  deliver  cargo  at  a  distance  from  consignee's  wharf,  72. 
unreasonable  usages  of  insurance  companies,  73. 

to  require  preliminary  survey  of  damaged  goods  by  port-wardens.  7-^. 
to  pay  only  two-thirds  of  gross  freight  on  a  total  loss,  73. 
unreasonablo  usages  between  master  and  servant,  73. 

that  if  female  slave,  hired  by  month  or  week,  is  confined  and  delivered  of 

child  during  term,  owner  should  pay  certain  sum  to  hirer,  73. 
among  wholesale  dealers  allowing  salesmen  pay  for  time  lost  by  sickness, 

without  regard  to  length,  73. 
for  sawyers  to  ship  lumber  intrusted  to  them,  and  converted  into  logs,  to 

lumber  factors,  to  be  sold  by  them,  73. 
that  person  employed  to  cut  staves  from  another's  bolts  has  right  to  take 


IMH.N, 


.j4;{ 


RKASON  A  H  f.  !•:  N  KSS  —  Continued. 

\"   Ills  own   use   rlippin^f^.  pornor-piooos.  aiul   rnllr.   witlMut   I'Dnsont  of 
owner,  7;^. 
of  plasterers  to  chftrtji!  not  only  for  sp:i<'e  rovered.  luit  lor  oiic-lmlf  ..f  sur- 
fiico  oci'upied  hy  oponiri;,'!*,  7'.). 
unrensonHble  tisanes  nnioiig  piiblji  odicors.  74. 

for  flour  inspector  to  t;ike  to  Itis  own  ii.si-  tloiir  ilniwn   from  hurrcl   in  |ir..(i.- 

of  inspection,  as  pcrc|uisitc,  74. 
of  goveriiniont   ollicers  to  iiccept  liills  witlioiit  coMsiiicration.  or  \n  plcil-,. 

credit  of  nation  ic*  <iircty  for  accoinnioiiation  of  contractor,  74. 
for  holders  of  settlements  and  preem|itions  of  land  to  Ljive  otic-iialf  \n  aiiotli.r 

for  surve;.  ;  v^  arid  p.iyini,^  c\penses  for  carryini,^  claims  to  i,'rant,  7  J. 
ill   inakinj;  survey?    for  locations  of  i,'overnnieiii   lund  i^ranted  to   -cttlcr.  t.. 
include  more  'and  than  warrant  actually  called  for.  74. 
unreasonable  usai,fes  between  i)rincipal  and  a-i'iit.  75.  77. 

that  one,  without  authority  trom  owner  of  lands,  may  dispose  of  tlicm  m 

ordinary  terms  anil  l>ind  owner,  7"). 
amorii,'  owners  of  vessels  to  accept  bills  of  their  masters  for  -.upplie-  I'ur- 

nished  abroad,  75, 
that  the  master  of  a  vessel,  as   such,  may  purchase  a  carrjo  on  accoui  t  ■<;' 

owners  without  authority.  75. 
to  sell  vessels  without  authority  fmrn  owner>,  75. 
for  broker,  employed  to  purchase  stock,  to  buy  stock  for  himself,  witlm,!; 

principal's  knowlodi^e,  75. 
that  a!;ent  may  sell  property  of  principal  before  ho  is  instructed       do  -o,  7.'). 
of  ai,'ents,  in  collectini;  drafts  for  absent  partic>,  to  surrender  them  to  drawee- 

at  maturity,  and  lake;  checks  upon  bank's,  75. 
of  brokers  of  tanned  .skins  to  insert  in  memorandum  .'f  -ale  wari'antv  <>! 

quality,  ~*>. 
of  warehous(!-keepors  to  have  (general  lien  on  i;oods  in  their  hand-.  7t;. 
that  person  employed  iis  a-eiit  may  eni^ai^e  in  another  bu-inc--,  7i;. 
for  ship-brokers  to  receive  a  commi-r-ion  for  introducini,'  buv;'r  lu  seller,  7i;. 
for  ai^oiit  to  act  for  both  pailies  and  receive  pay  from  both.  7t;. 
for  insurance  agent  to  receive  commis-ioii  on  renewal  premium- at'ter  icr- 

inination  of  his  onj;'a<^ement,  7i). 
of  wharfingers  to  deliver  goods  without  responsibility.  77. 
miscellaneous  unreasonable  usages,  77. 

to  use  and  imitate  the  trade-marks  of  foreigners  with  impunity,  77. 

of  publishers  of  newspapers  to  insert  .•idverlisoments  after  object  of  adv  "i- 

tisenieiit  has  ceased,  77. 
to  mine  coal  without  leaving  pillars  to  support  surface,  77. 
that  when  persons  clear  place  for  seine-lishing,  they  bold  it  against  wmi!,! 

during  fishing  season,  77. 
of  owners  of  mines  to  dispose  of  water  pumped  therefrom,  by  allowini;-  it  ;.. 

flow  into  adjacent  natural  watercourse,  77. 
that  outgoing  tenant  of  farm  shall  look  e.xclusively  to  incoming  tenant  '..! 
compensation  for  seeds,  77. 
rea>onableness  of  usage  a  question  of  la.v,  104. 


mvEii, 

law  of  the,  17. 

custom  of,  as  to  booming  logs,  44. 


544 


iXDi;x. 


KI\'Ell  —  Continued. 

(Histom  that  when  persons  clear  pluce  tor  auiue-iUliii)^,  Uiey  hold  it  during  seiison 
agftinst  ill),  77. 

ROAD, 

law  of  the,  17. 


SALES.     {See  Vexdor  and  Purohasir.) 

SPORTING  USAGES. 

custom  that,  in  agreement  for  horse-race,  "across  a  country  "  does  not  allowrider? 

to  sjo  througli  gates,  389. 
custom  of  sportsmen  that  when  either  party  relinquisiies  deposit,  bet  is  at  ;ui 

end,  admissible,  390. 

STATUTES, 

every  common-law  custom  supposed  to  be  founded  on  a  forgotten  statute,  16. 
statutes  as  affected  by  usages  and  customs,  453. 

usages  repugnant  to  statute  void,  453. 

words  detinod  by  act  of  Parliament,  454. 
contrary  usages  void,  451. 

(See  WoKDs  and  Phrases.) 
where  a  statute  declares  that  every  pound  of  butter  shall  weigh  sixteen  ounces, 
a  custom  that  every  pound  of  butter  sold  in  a  particular  town  shall  weigh 
eighteen  ounces  is  bad.     Noble  v.  Darell,  420. 
statutes  proscribing  officers'  duties  not  affected  by  usage,  455. 

illustrations,  4o5-4o8. 
statutes  prohibiting  usury  —  contrary  usages  void,  458. 
statutes  requiring  contracts  with  seamen  to  be  in  writing  —  contrary  usage  void, 

458. 
statute  prohibiting  carrier  from  limiting  common-law  liability  cannot  be  altered 

by  usage,  459. 
statute  declaring  violent  and  tumultuous  acts  riot,  460. 

custom  of  the  country  void,  4tJ0. 
-tatute  requiring  sales  of  liquor  to  be  for  cash,  460. 

custom  to  sell  at  thirty  days  illegal.  460. 
statute  allowing  days  of  grace  on  note,  460. 

contrary  usage  void,  460. 
statute  requiring  assignment  by  writing,  460. 

custom  to  assign  b\  delivery  void,  460. 
statutes  as  to  partition  fences  —  contrary  custom,  460. 
statute  prohibiting  work  on  Sunday,  460. 

custom  of  barbers  to  work  on  tUat  day  void,  460. 
statutes  as  to  watercourses  —  contrary  custom  void,  461. 
statute  requiring  safety -plugs  on  steam-boilers,  461. 

contrary  custom  in  manufacturing  establishments  void,  461, 
statutory  exemptions  cannot  be  waived  by  usage,  462. 
statutes  may  be  construed  by  usage,  462-465. 

municipal  charter  and  powers  as  affected  by  usage,  463. 

unlawful  expenditure  of  money  by  municipal   corporations  not   valid  by 
usage,  464. 

STOCK  EXCHANGE.    {See  Principal  and  Aqent.) 


545 


during  setwon 


INDEX. 

SURETYSHIP, 

usage  to  explain  or  add  incidents  to  contracts  o^  886. 
SURVEYORS.    {See  Offices  and  Officers.) 


THEATRE, 

what  are  customary  duties  of  girl  engaged  as  "danseuse,"  397,  398. 
TRADE-MARKS, 

custom  to  use  and  imitate  trade-marks  of  foreigners,  77. 
TRESPASS, 

custom  to  pull  down  houses  to  prevent  spread  of  fire,  64. 
to  turn  plough  on  another's  heaflland,  64. 

todostroy  corrupt  victuals  exposed  for  sale,  64.  - 

to  dig  gravel  on  adjacent  land  to  repair  way.  64. 

to  have  a  watering-place  in  adjacent  land,  64. 

to  dig  for  ballast,  64. 

to  dry  nets  on  another's  land,  64, 

to  enter  on  close  for  horse-racing,  65. 

custom  for  all  inhabitants  to  play  at  games  in  a  particular  close.  65. 

to  dry  nets  on  land  adjacent  to  the  sea,  66. 

forvictimllors  to  erect  booths  on  common,  66. 

to  go  through  a  p.'<.rticular  house,  67. 

to  train  horses  be'-ond  limits  of  parish,  67. 

proper  use  of  public  or  privato  way  depends  on  custom,  331 

case  of  entering  on  another's  lands,  332. 

or  letting  cattle  run,  332. 

UNDERTAKERS, 

"To:toU.tn:  "''■""'  -*o^«««'-  "-^  atany  funeral,  although  used 

UNREASOXABLE  USAGES.     (.%«  Rrasokaklevkss.) 

USAGES  OP  TRADE.     (See  Vkvdor  and  Pn,iPMA«o.,.    „  ^  *u 
ti^,g3  \  ^        vji.NuoK  AND  roRCHASKR,  and  the  various  special 

USURY.    {See  Interest.) 


VENDOR  AND  PURCHASER,     (See  also  Intkrest;   Payment  ) 

usage  in  cloth  trade  that  seller  could  demand  goods  back  unless  notified  by  buyer 

withm  three  days,  a  week,  or  a  month,  33.  ^    ^ 

usage  of  nrierchants  to  deliver  goods  sold  for  cash  without  demanding  the  cash 

when  seller  considers  the  purchaser  good,  33. 
unreasonable  usages  between  vendor  and  purchaser  69  70 

on  sale  of  goods  of  one  mill,  delivery  of  goods  of  another  mill.  69. 

35 


546 


INDEX. 


VKNDOPv  AND  PURCHASER— Co»«nuerf. 

that  sales  of  particular  class  of  goods  are  subject  to  approval  of  public  in- 
spector, but  if  there  is  no  such  inspector,  buyer  may  rescind  purchase  at 
pleasure,  69. 

that  no  title  passes,  upon  ordinary  sale  and  delivery,  without  actual  payment 
of  consideration  within  certain  number  of  days,  69. 

that  if  note  is  given  for  gold-mine,  and  it  proves  unproductive,  it  ia  given 
up,  69. 

for  merchants  to  sign  receipts  presented  by  cartmen  with  goods,  without 
inquiry  on  part  of  receiving-clerk  as  to  theii  ')wner8hip,  or  place  from 
which  they  were  received,  69. 

of  board  of  trade,  on  cash  sales  of  produce  or  provisions,  ^ving  buyer  privi- 
lege of  having  them  inspected  at  his  own  expense,  69. 

among  dealers  in  cotton  as  to  warehouse-receipts,  69. 

that  where  the  vendor  of  goods  receives  note  of  the  consignee,  without 
indorsement  of  purchaser,  latter  is  discharged,  and  maker  alone  remains 
liable,  69. 

among  merchants  to  have  their  goods  sent  to  their  stores  by  long  and  circuit- 
ous routes,  69. 

to  balance  books  annually  and  charge  interest  on  running  account,  69. 

to  put  all  big  strawberries  at  to^^  vf  box,  11. 
usages  of  trade  affecting  sales,  803-318. 

A.  purchased  of  B.  a  number  of  bales  of  cotton,  at  a  certain  price  per  pound. 
Several  months  prior  to  the  sale  the  cotton  had  been  weighed  by  the  wliarf- 
inger,  and  marked  on  the  bugs  and  in  the  books  at  63,013  pounds.  Wlien 
the  cotton  was  delivered  it  was  reweighed  by  A.,  and  found  to  amount  to 
only  61,205  pounds.  A.  thereupon  paid  B.  for  the  cotton  as  of  the  latter 
weight,  but  refused  to  pay  for  more  than  he  had  actually  received.  In  a. 
Buit  by  B.  against  A.  for  the  difference,  it  was  proved  that,  according  to  the 
custom  of  the  trade,  cotton  was  weighed  by  the  wharfinger  before  it  was 
put  in  store,  and  the  weight  marked  on  the  bags  and  entered  in  books  kept 
for  tliat  purpose,  and  that  where  a  sale  was  made  without  any  stipulation' 
to  the  contrary,  it  was  understood  as  being  made  upon  the  basis  of  the 
weights  thus  ascertained.  Held,  that  A.  was  bound  by  the  custom,  and 
that  B.  was  entitled  to  recover.  Conner  v.  Robinson,  190. 
other  illustrations,  804,  305. 

terms  of  sale,  305. 

price  —  credit,  305. 

warranties  on  sales,  306-308. 

a  warranty  may  be  implied  i>om  the  custom  of  a  particular  trade.  It  being 
UKual,  in  the  sale  by  auction  of  drugs,  to  state  in  the  catalogue  it*  they 
were  sea-damageJ  or  not,  if  nothing  is  said  as  to  their  quality  they  are 
supposed  to  be  sound.  The  defendants  offered  for  sale  a  quantity  of  sea- 
damaged  pimento,  without  saying  anything  about  its  condition,  which  was 
purchased  b)'  the  plaintiff.  Held,  that  this  was  equivnlent  to  :>  sale  of  tilt 
goods  as  and  for  goods  that  were  not  sea-damaged,  and  that  an  aution  lay 
for  the  fraud.  Jones  v.  Bowdtn,  186. 
conflicting  cases,  306-308. 

usage  on  sales  by  sample,  308. 

on  sales  by  manufacturer,  309.  */ 

pledgeor  and  pledgee,  310. 

rules  of  law  as  to,  not  jifl'ected  by  contnirv  oimtom.  810, 


INDEX , 


547 


VENDOR  AND  PURCHASER  _  Continued. 

purchager  wishins  to  rescind  must  rescind  entire  contract.  811 

contrary  usage  valid,  311,  313. 
delivery  of  goods  and  passing  of  title,  818. 
how  affected  by  usage,  313. 

""tod!  Z!^Z  k"!!''  •"  *  '"**•"  ^"«'"«"  f°'  t^«  f  uyer  to  leave 

seUeri^hf  K  ^^™'"'*"-''''"°^"*"  ''"  persons  dealing  with  the 
seller  m  h  s  business,  goods  so  left  in  tho  hands  of  the  seller  for  a 
time  not  longer  than  is  clearly  within  the  custom  do  noron  th' 
bankruptcy  of  the  seller,  pass  to  his  assignee  under  the  Ba  k' 
ruptoyAct.     Priestley  v.  Praf.t,  201.  'oer  ine  Bank- 

other  illustrations,  S14,  316. 
luage  to  explain  contracts  of  sale,  372-382 

quality  and  description  of  goods  contracted  for  ascertained  by  usaire  372^7-. 
horn  chams,"  in  agreement  to  manufacture,  372.  ^     ^'  ^" 

•one  foot  high,"  in  contract  for  trees,  372. 
other  instances,  372-376. 

(See  Words  and  Phrases.) 
quantity  and  price  ascertained  by  usage,  375-378. 
"crop  of  flax,"  in  contract,  376. 
"barrel,"  in  sale  of  oil,  376, 
" one  thousand  sliin-les,"  in  contract,  376. 
other  cases,  377-381. 

(See  Words  and  Phrases.) 
;  contradictory  decisions,  379,  380 

usage  may  show  whether  contract  is  bailment  or  sale  387 

contracts  of  sale,  if  not  ambiguous,  cannot  be  altered'by  usage  448^52 
criticism  of  some  cases,  448.  '     ^  '  ***-^o2. 

where  a  statute  declares  that  every  pound  of  butter  shall  weigh  sirteen 
ounces,  acustomthateverypoundofbuttersold  in  a  pSlartl! 
shall  weigh  eighteen  ounces  is  bad.     Noble  v.  Durell.  'Jq  "^'"^"'^  ^*" 
statute  requiring  sales  of  liquor  to  be  for  cash,  460. 

custom  to  sell  at  thirty  days  ilhg  -I,  460. 
statute  requiring  assignment  by  writing,  46o! 

custom  to  assign  by  delivery  void,  460. 
usages  against  legal  rules  admitted.  472. 
usages  against  legal  rules  rejected,  472. 
VBTRRINARY  SURGEONS, 

usage  of,  to  charge  for  attendance  as  well  .13  medicin«  ,«»,«„  .1,       • 
medicine  required,  83,  63.  278.  'nedicme  when  there  is  not  much 

VIRGINIA, 

doctrine  in,  as  to  ancient  customs,  27, 

custom  of  waygoing  crop  not  recognized  in,  269. 

WAGES.    (See  Mastkr  and  S.bvant;    Pkinoipal  and  Aobkp., 
WARRANTY.    (See  Vendor  and  Purchaser.) 

Watercourses, 

what  is  proper  use  of,  depends  on  custom,  332. 
•tatutes  aa  to  — contrary  custom  void,  461. 


548 


,  INDEX. 


WILLS, 

custom  that  land  shall  descend  to  the  most  worthy  of  the  owner's  blood,  31. 
custom  of  party  as  to  signing  will,  79. 
explaining  doubtful  words  in  will,  102. 
usage  admissible  to  explain  wills,  398-400. 

a  testator  gave  to  certain  devisees  "all  my  back  lands."     Held,  that  parol 
evidence  was  admissible  to  designate  the  premises  —  as,  by  showing  that 
certain  lands  owned  by  him  were  usually  known  by  that  description  to 
him,  and  among  his  family  and  neighbors.    Ryeraa  v.  Wheeler,  351. 
to  explain  devise  by  evidence  of  usage,  398. 
testator's  habit  of  using  particular  term  in  particular  sense,  398,  399. 

illustrations,  398-400. 
custom  to  transfer  land  by  death-bed  gift  without  will  invalid,  400. 
custom  to  give  farms  to  eldest  sons  not  admissible  to  establish  gift,  400. 

WITNESSES,    {See  also  Proof  of  Usage.) 

witness's  knowledge  being  not  later  than  a  year  before  his  introduction,  usage 

inadmissible,  37. 
one  witness  may  prove  a  custom,  97,  98. 

contrary  dictum,  in  Wood  v.  Hickok,  criticised,  97. 
conflicting  decisions  in  South  Carolina,  98. 
rule  in  Alabama,  98. 
in  the  Federal  courts,  98. 
in  Massachusetts,  98. 
a  usage  of  a  particular  business  is  not  sufficiently  proved  by  the  testimony  of 
onlj'  one  witness  to  support  it,  where  another  witness,  equnlly  familiar  with  the 
business,  denies  it,  and  where  other  witnesses  on  the  subject  might  be  had. 
Parrott  v.  Thaeher,  85,  99. 
mode  of  proving  usages  and  customs,  98-103. 
where  legal  liability  is  to  be  affected,  99. 
fact  of  usage  must  be  shown,  99. 
and  not  opinions  of  parties,  99. 

witness  need  not  testify  to  individual  cases,  if  he  swear  to  the /ac<,  !00. 
where  mercantile  terms  are  to  be  explained,  101. 
persons  may  give  their  opinions,  101. 
but  not  their  opinions  on  its  legal  effect,  101. 
admissibility  of  dictionary ,  102. 
to  explain  doubtful  words  in  will,  102. 
witnesses  need  not  all  agree,  104. 
who  may  be  called  as  witnesses,  103. 

any  person  who  knows  of  the  custom  as  a  fact,  learned  by  observation,  103 
customs  of  architects  msiy  be  proved  by  builders,  103. 
of  adjusting  losses  on  iron,  bj'  insurance-brokers,  103. 
of  banks,  by  customers  of  bank,  103. 

WORDS  AND  PHRASES, 

where  mercantile  terms  are  to  be  explained,  persons  may  give  their  opinions, 
101. 

but  not  their  opinion  on  their  legal  effect,  101. 

admissibility  of  dictionary,  102. 

to  explain  doubtful  words  in  will,  102. 
usage  may  explain  technical  or  unintelligible  terms,  867. 
may  explain  even  unambiguous  terms  if  used  in  a  peculiar  mode,  367. 


INDEX. 


54{> 


luctioD,  usage 


leir  opinions. 


WORDS  AND  PHRASES- Coniinued. 

'"ttrml?^  "  '•^bbit-warren  the  lessee  covenanted  that  at  the  expiration  of  the 

IZ   Jo  r  ""  ?'  ''"'''"  *«"  *^°"^»"^  ™^'>'^.  tl^e  lessor  paying  fo^ 

them  £00  per  thousand.  In  an  action  by  the  lessee  against  the  lessor 
for  refusing  to  pay  for  the  rabbits  left  at  the  end  of  the  termi  held,  hat  parol 
evidence  was  admissible  to  show  that  by  the  custom  of  the  countr^  where  U^ 

usage  to  explain  contracts  of  sale,  372-382. 

usage  to  explain  words  in  wills,  351,  398-4*00 

usage  admissible  to  explain  words  and  phrases  in  policies  of  insurance  401-408 

and  m  bills  of  lading  and  other  maritime  contracts.  408-411 

words  defined  by  act  of  Parliament  -  contrary  usages  void,  454. 

Different   Words  and  Phrases  defined  and  construed  by  Usage,  passim, 
"About."    In  contract  of  sale,  377. 
"Across  a  country."    In  agreement  for  a  horse-race,  389. 
"Advertising  chart,"  394. 
"Amelia  Island."    In  insurance  policy,  404. 
"  At  100a."    In  contract,  373. 
"  Back  lands."    In  will.  361. 
"Bale,"  373,  378. 
"  Bale."    In  charter-party,  403. 
"  Bankers."    In  will,  400. 
"  Bar-iron."    In  insurance  policy,  402. 
"Barrel,"  376. 

"Belonging  to  exhibitors."    In  insurance  policy.  268 

"Best  EX.F.F.  madder."  375.  * 

"  Boats."    In  insurance  policy,  438. 

"  Bond,"  386. 

"  Borrowed  money,"  386. 

"  Building."     In  contract,  443. 

"  Bushels."    In  statute,  454. 

"  Business  card,"  394. 

"Cabinet  and  mahogany  door  maker." 

"Canada  money,"  388. 

"Cai^o."    In  policy  of  insurance,  402. 

"Carpenters."    In  insurance  policy,  259. 

"Cas,"378. 

"Certified."    On  check,  212. 

"Cider,"  375, 

"City  of  London,"  405. 
"Clear,"  442. 

"Clough  Overton's  survey."    In  ilced,  388. 

"O.  O.  D."    In  bill  of  l«(-- 

"  Colliery."    In  deed,  888 

"Consigned  (5  mo,,"  377. 

"Corn."    In  insurance  policy,  401. 

"Cost,"  378. 

"  Cost  price,"  378. 

"Current  funds. "    Tn  note,  450. 

"Currency,"  388. 

"Dangers  of  the  river.'      In  bill  of  lading,  488. 


In  agreement  to  teach  trade,  394. 


550 


INDEX. 


WORDS  AND  VimxSES—Cotdinued. 

"  Dangers  of  tlie  aeas."    Id  bill  of  lading,  436,  440. 

"DanMUse."    In  contract  with  dancing-girl,  397. 

"Day."    lu  contract  for  labor,  893. 
•  "Days."    In  bill  of  lading,  408. 

"Derby  Line."    In  bill  of  lading,  408. 
'  "Drawbridge."    In  agreement  to  build,  375. 

"Estimated,"  877. 

*'  Ex  boats  Spencer  and  Gait,"  878. 

"  Expected,"  386. 

"Face  of  the  work."    In  building  contract,  393. 

"Feet."    In  contract  for  sale  of  lumber,  877. 

"  Fire  by  lightning."    In  insurance  policy,  406. 

"  Fire-works."    In  insurance  policy,  259. 

"  Floors."    In  insurance  policy,  407. 

"  For  .account  of,"  387. 

"  Foreign  ikiission  Society."    In  will,  898. 

*'  For  J.  Makinson."    In  packer's  receipt,  881. 

*'For  the  purpose  of  keeping  and  storing."    In  insurance  policy,  261* 

"Frame  house,  filled  in  with  brick."    In  insurance  policy,  40C. 

"  Free  from  average."    In  insurance  policy,  440. 

"Freight"    In  charter-party,  409. 

"  Freight  measurement"    In  charter-party,  409. 

"Fresh  seed,"  875. 

"  Full  and  complete  cargo."    In  charter-party,  411. 

"  Furniture."    In  insurance  policy,  403. 

"  Oas-flxtures,"  875. 

"  German  cylinder  glass."    In  contract  of  sale,  375. 

"  Glass-ware  in  casks  "    In  policy  of  insurance,  439. 

"  Good  custom  cowhide  boots."    In  contract  of  sale,  374. 

"  Good  merchantable  hay,"  874. 

"  Good  team."    In  contract  for  manufacture  of  mower,  375. 

"  Goods."    In  definition  of  common  carrier,  215. 

"Goods,  specie,  and  effects."    In  policy  of  insurance,  403. 

"  Goods  usually  kept  in  country  stores."    In  policy  of  insurance,  260i 

"  Grub,"  442. 

"Gravel."    Indeed,  888. 

"Gulf  of  Finland."    In  insurance  policy,  404k 

"  Harbor  of  Boston,"  405. 

"  Hard-pan."    In  contract  to  excavate,  893. 

"  His  crop  of  flax."    In  contract  of  sale.  875. 

"  Home  of  the  Friendless."    In  will,  898. 

"  Homestead."    In  will,  400. 

"Honored,"  377. 

"  Horn  chains."    In  contract  to  manufacture,  372. 

"  Ills,  cy.,"  886. 

*' Indian  islands."    In  insurance  policy,  404. 

"  Inhabitant"    In  statute,  468. 

"In  store,"  887. 

"  I.  X.  r."    In  will,  400. 

"  Kentucky  currency,"  886. 

"  Kerosene."    In  insurance  policy,  269,  260. 


'■i 


INDEX. 


051 


WORDS  AND  mnXSES- Continued. 

Kurty  48  to  60  per  cent  carbonated  soda-ash,"  372. 

Lace  buyer."    In  contract  of  service.  397. 
"Lady-day."    In  lease,  270. 
"Lanier  House,"  38(5. 
••Less  expense  account."    I„  bill,  878,  nott. 

Level.      In  lease  of  mine,  890. 
"Loading  in  turn."    In  charter-party,  409. 

Loading  off  shore."    In  insurance  policy.  401. 
"Long  weight."    In  statute,  454. 
"Lost  time,"  441. 

;;Mess  pork  .,f  Soott  A  (J,>."     I„  contract  of  «ale,  875. 
"Michaelmas."     In  l.^asc,  270. 

"S."i;rrm™"-'' '"'"'""""  ■»""'•  ™- 

"Month,"  378. 

"Moreor  less,"  451. 

"Necessity  or  mercy."     In  statute,  460. 

"Net  balance,"  377. 

"Not  insured."    In  bill  of  lading,  408. 

"One  foot  high."     In  3,Uo  of  trees,  372. 

"One  month,"  379. 

"One  thousand  feet,"  377. 

•'  One  thousand."    In  lease,  271 

••One  thoiwand."     I„  contract  for  sale  of  shingles.  376. 
"On  freigh t, ' '  378,  387.  8 «■»,  ^ « o. 

••Other  iiisuraiic«."     [„  p„|icy,  440. 

"  Outfit."     In  policy  of  i  twurance,  401. 

"O.  X.  X."     In  will,  400. 

"Particular  average."     In  policy  of  insurance.  403. 

•  Penis  of   h.  s.as."     !„  bil!  of  lading,  436.  439. 

1  ig-iron."     In  contract  of  sale,  373. 
"Pitch-pino  timber  of  average  quality,"  376 
••Port  of  Now  Orleans."     I„  insurance  p<,licy,  401. 
"Port  nsk."     In  policy  of  insurance,  403. 
••Preachers  of  Christ's  Holy  Gospel."    In  will.  394 
"Premises."     In  deed,  388. 
••Prime  logs,"  374. 
••  Prime  singed  bacon."     In  contract  of  sale.  447. 

Privilege."    In  charter-partv,  409. 
"  Privilege  of  deepening  tho  ditch."    In  deed,  .188. 
Privilege  of  reshipping."     In  bill  of  lading,  408. 
Proceed.s."    In  insurance  policy,  25(i 
"Proceeds."    In  policy  of  insurance,  403. 
••Product,"  374. 

"  Prudential  concerns."     In  statute.  464 
••Published,"  394. 
••  Quantity  guaranteed."     In  bill  of  Inding.  408. 

Quarters  of  corn."  In  statute.  454. 
••Rainy  days."  In  hill  of  lading.  408. 
••Room."    In  insurance  policy,  405. 


552 


INDEX. 


WORDS  AND  FRR\.S1&9  — Continued. 

"Hope  manufacturer."    In  insurance  policy,  260t 

"  Salesmen."    In  contract  of  service,  397. 

"Salt."     In  insurance  policy,  401. 

"  Same  ground."    In  contract  for  service,  897. 

"Saw-mill."    In  deed,  388. 

"  Sea  letter."    In  policy  of  insurance,  403. 

••  Season,"  874,  378. 

"  Ship-carpenter's  work."    In  contract  for  service,  'Ml. 

"  Short,"  877. 

"  Six  months  after  date."    In  contract,  447. 

"  Skins."    In  insurance  policy,  401. 

"  Spoiled  lumber,"  375. 

"  Standing  detached."    In  insurance  policy,  408. 

"  Store  fixtures."     In  insurance  policy,  405. 

"  Storing  of  oil  and  spirituous  liquors."     In  insurance  policy,  259. 

"  Tapering  brushes."    In  specification  for  patent,  339. 

"  Terms  cash."  377. 

"  Terms  £2  10s  per  cent  monthly."    In  invoice,  381. 

"Texas  money,"  386. 

"  The  church."    In  will,  398. 

"  Their  freight."     In  bill  of  lading,  408. 

"  Timber  for  building."    In  deed,  388. 

"  Tobacco  pressing."     In  insurance  policy,  406. 

'*  Ton."     In  statute,  454. 

*'  Town."     In  contract,  405. 

*'  Voyage."     In  insurance  policy,  2")7. 

"  VViirrunted  to  depart  with  convoy."     In  policy  of  insurance,  403, 

"  Waste  lands."    In  deed,  388. 

"  Weekly  accounts."     In  building  contract,  393. 

"  Wet,  dirty,  and  inferior  oil."    In  contract  of  sale,  879. 

"  Wet  oil,"  876. 

"  Whaling  voyage."     In  policy  of  insurance,  403. 

"  White,"  373. 

"  Wholesale  factory  prices."     In  note,  377. 

"  Winter-strained  lamp  oil."     In  contract  of  sale^  374. 

"With  all  faults,"  375. 

"  Wood-house."    In  insurance  policy,  407. 

"  Yard."    In  insurance  policj',  406. 

"  Years."    In  contract  with  actress,  394. 

"  Your  wool,"  378. 

"Zinc."    Indeed,  388. 


39. 


'3: 


